Restoring Common Sense to Competency Restoration

By Jed Wolkenbreit, Counsel, NYS Conference of Local Mental Hygiene Directors

As tragic stories of people with mental illness being harmed or killed during interactions with law enforcement continue to appear in New York and around the nation, it begs the question: “How could we better serve mentally disabled criminal defendants?”

In the 1840’s New York began to institutionalize the mentally ill in state institutions at county expense. Counties often chose to retain these mentally ill people in the community by committing them to poorhouses or jails. Over time, the funding of state hospitals became solely a state responsibility, and these institutions became the main depository of the mentally ill until advances in pharmacology and the cost of institutional care started a movement to return mentally ill patients back into the community. Unfortunately, the lack of real discharge planning or a funding source led to major increases in homelessness and increased contact with the criminal justice system—a de facto return to the poorhouses (homeless shelters) and jails of the nineteenth century.

This trend required the criminal justice system to face the issue of how to handle a mentally ill person who was incompetent to stand trial (IST). The US Supreme Court, in Dusky v. US, held that to be competent to stand trial, a defendant must have sufficient ability to rationally consult with his lawyer and a rational and factual understanding of the proceedings. IST defendants are therefore sent to a state institution to receive services that are intended to restore that defendant to competency and allow the trial to proceed. Restoration services may include some traditional treatment elements such as providing medications but mainly include classroom training as to how to act in court and how to answer questions asked by the judge to establish ability to stand trial. Mental health treatment leads to recovery, restoration leads to trial in a courtroom. The State Mental Hygiene Law has long provided that the cost of these services are chargeable to the county in which the court that issued the order for restoration is located. Until 2020 the State only passed on half of the cost of these services. In 2020, it began charging the full charge of approximately $1000 a day for restoration services. This change was a wakeup call for many counties who began receiving bills of hundreds of thousands or even millions of dollars.

Also, despite the Supreme Court ruling in the case of Jackson v. Indiana that states may not indefinitely confine criminal defendants solely on the basis of incompetence to stand trial and that the commitment duration be limited based on the likelihood of restorability, we are still seeing defendants with low IQs, traumatic brain injury or terminal dementia spending 3, 5 or up to 10 years in “restoration.” Neither the psychiatric examiners nor the court ever consider whether there is any reasonable likelihood that the defendant can be restored. Furthermore, and most importantly, the determination of incompetency makes the defendant unable to legally plead to any charge which is a requisite for being diverted into a mental health court program which might actually help them reach recovery.

To begin to address this issue, NYSAC and the NYS Conference of Local Mental Hygiene Directors have worked together to develop legislation to amend section 730 of the criminal procedure law to help make it more rational. This legislation, (A 8402-A) Gunther/ (S7461) Brouk, would make significant improvements to the current competency restoration process by creating a clear definition of restoration services, requiring improved progress reporting, creating new regulations, and allowing the Court rather than the DA to decide if a person can be sent for restoration services in the community rather than in a state facility, among several other provisions.

In addition to the passage of this legislation, costs to counties could be substantially reduced if restoration services are properly deployed and rigorously monitored. Many judges (especially local court judges and justices) truly believe that they are helping a defendant to get mental health treatment by ordering restoration but this is simply not the case; restoration is not recovery. In fact, by ordering restoration in those jurisdictions which have a mental health court, the defendant is precluded from being diverted to treatment because in order to participate in mental health court, they have to plead guilty and if they are not competent, they cannot plead.

Secondly, even when restoration is appropriate, it can be done locally on an outpatient basis with the approval of the local DA but most, if not all DAs refuse to give such consent. Finally, defense attorneys often believe they are doing the right thing by their clients by having them sent to a forensic hospital as it is likely a better place than a jail or prison, but they would be much better off if they could be diverted to real mental health treatment aimed at recovery rather than services which are solely directed to the ability to participate in the criminal justice system. It is imperative that County Executives, Managers and Administrators; local legislators, judges, DAs, Public Defenders and County Probation start to have real conversations with each other about this problem. County budgets can be reduced by sending fewer people to state restoration. Moving the cost of restoration to the DAs budget may make the DA more amenable to allowing outpatient restoration which may be eligible for Medicaid subsidy in appropriate cases. Educating judges and public defenders about what constitutes mental health treatment and what restoration accomplishes, explaining other options for them to get information about the defendant’s mental status without ordering restoration and helping to make better use of diversion or even to create or make better use of mental health courts are all possibilities.

Where available, courts could use its powers under MHL §9.43 and the services of local probation departments for pre-plea reporting to accomplish diversions as appropriate. All these are avenues that can be explored and which can help create a win-win situation for all parties. There is a fix for the system if we all do our part.

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A Devastating Gap

Supply & Demand of a Mental Health System During a Pandemic

By Brian Hart, LCSW-R, Commissioner Chemung County Departments of Social Services and Mental Hygiene

While this story is not unique in many ways, the experience in Chemung County is worth sharing if for no other reason than to help those outside of the healthcare delivery system appreciate the strains on the mental health system.

Some may describe what has happened as a perfect storm, others as a failure of the system. In recent years, the components leading up to our current times include a plan to reduce state operated mental health beds without replacing them with private sector beds, bail reform allowing virtually nobody to be placed in jail, but to be given an appearance ticket instead, and an epidemic of drug overdoses and fatalities all nicely wrapped up by a worldwide pandemic.

The aftermath of which has yet to be fully revealed, but they collectively have resulted in many homeless individuals with chronic mental illness living, at best, in a motel. Our mental health system has, in essence, been converted into a pressure cooker with no relief in sight, as being hospitalized has become an exception. There is next to no movement in the mental health housing system as affordable housing has become a misnomer. This is especially true for counties along the NYS PA border left with astronomically high rents following the gas drilling surge.

As the pandemic devastated so many, the perspective of working from the office has led to a national virtual work force in many situations, and unprecedented vacancies rates in others. Nobody predicted that universally all sectors of healthcare, retail, and manufacturing alike would be left with a significant workforce shortage.

For the mental health system, this has meant limited to no access to services concurrent with a society struggling with an emotional backlash of epidemic proportions in and of itself. Demand for mental health services is higher than it has ever been, and staff to provide such is at what appears to be the lowest in modern history.

In Chemung County one would therefore expect a system of total chaos, but the real story is slightly brighter than one may expect, as our community has always been one of resilience despite a history of being at the top of many of the wrong lists. Completed suicides amongst adults and youth alike have remained stable since 2015. We have been successful in maintaining either virtual or in-person counseling for nearly 3,000 individuals a month through our licensed mental health clinics including nearly 300 youth a month in our school-based clinic service.

As a community we have provided, and continue to provide Narcan education. This community approach to education along with many collaborative efforts introduced by the Substance Abuse Regional Alliance have been a jump start to addressing this issue. Our efforts include a FREE phone application (SARA.partners), and publicly accessible commercials. The net result has been a 30% decrease in opioid reversals since 2017 and maintaining such even during the COVID outbreak.

I wish that all of our efforts yielded positive systemic changes, but we still find ourselves with long waiting lists for mental health counseling at local agencies and private practice offices. Our long-time homeless housing provider is opting to stop providing this service primarily because of the intensified need of these seeking this service, despite us having nearly 200 individuals homeless during the winter months. Most individuals brought to the hospital for mental health acute care, are assessed and turned away for not meeting medical necessity.

With a commitment to continue addressing the gaps while simultaneously enhancing our quality of services, Chemung County has initiated law enforcement online trainings offered by the Disaster Technical Assistance Center. A pilot sponsored by the NYS Office of Mental Health is providing iPads to law enforcement allowing direct connectivity with our mobile crisis team, and we have been approved to engage stakeholders in the Sequential Intercept Model of addressing needs. In 2022, a mental health licensed Family Center will open up with a focus on Trauma Informed Care practices, and one of our providers will also be expanding their substance abuse clinic services to include methadone treatment.

In another words, as nearly 2,500 individuals note in our flower garden during the annual suicide prevention walk, there is “HOPE” for our resilient community as well as yours!

Bringing Mental Health Restoration Services Where They’re Needed

By Amber H. Simpler, PhD, ABPP, Board Certified in Forensic Psychology, Chief Psychologist, NaphCare

New York is on the verge of passing legislation that will allow it to join a dozen other states across the country and begin providing jail-based restoration (JBR) mental health services for county correctional defendants who have been found unfit to stand trial and are in need of competency restoration services, rather than providing those services exclusively through state mental hospitals. By permitting some patients to receive care in the jail setting, we can more quickly intervene to help patients who are in mental health crisis, reduce human suffering, and provide more cost-effective services while saving money for taxpayers. The result is a win for the patients who need competency restoration services, a win for Sheriff’s offices, and a win for taxpayers.

The need for JBR arose, in part, from the fact that counties previously shouldered only 50 percent of the costs of sending mentally incompetent defendants to state psychiatric facilities, with the state covering the other 50 percent. That formula was changed so counties now bear the entire cost of competency restoration expenses. JBR is a way for counties to improve patient outcomes by reducing lengths of stay and delays related to transfer from county to state facilities while also allowing incarcerated individuals to stay in communities closer to family and personal networks while receiving restoration services. JBR has also been shown to significantly reduce costs to the county.

Legislation was introduced (A.7061/S.9133) by Senator Mannion and Assemblymember McDonald, respectively, that would amend the criminal procedure law, to establish a five-county, three-year pilot JBR program. The optional pilot would permit county jails to operate jail-based competency restoration services for inmates deemed unfit for trial due to an active mental illness or an intellectual disability. JBR would allow for faster initiation of restoration services (i.e., avoiding delays in transferring to state facilities), thereby reducing the amount of time individuals are waiting to begin services and minimizing delays in due process. When an individual is deemed incompetent to stand a trial, they must be restored to competency before the legal process can continue. Under New York State’s current system, competency restoration for a defendant is provided either at an outpatient restoration program or a state psychiatric facility. Most of the time in New York, the defendant is remanded to a state hospital. Providing counties a third option, jail-based restoration, could allow most of these individuals to be restored in their own communities and not sent to a state hospital—a level of care most would not require or be eligible for outside of the criminal commitment.

Serving inmates at the local county jail greatly helps their mental health by allowing the individual to remain in their community and close with their community connections. Data has shown decreased rates of recidivism and increased psychiatric stability for individuals allowed to remain near those who can offer social support compared to inmates shuttled to entirely different parts of the state, away from their family, friends, and support system. Many criminal justice reform groups and correction experts support JBR as an additional resource along the care continuum because it allows for quicker access to services and subsequent stabilization of psychiatric symptoms at a pivotal time in their life.

Having the option of providing some of these services in the jail setting will be tremendously beneficial. Patients who are appropriate for transfer to a state mental hospital for mental health care and competency restoration will still be transferred to such a facility as appropriate and as beds are available.

In this year’s legislative session, we have had the support of a number of legislators and policymakers in both chambers and among professional staff. The Governor's Office has expressed support for the legislation as well, as OMH has previously supported JBR. It is critical for counties to voice their support and let their county legislative delegation know it's critical to pass this much needed legislation.