[T]he Department of Mental Health took public input for 90 minutes Tuesday on a proposal that would dramatically change the way people behaving psychotically are forced to have medical treatment in Vermont.
Frank Reed, the commissioner of the department, and his team met in the newly rebuilt Waterbury State Office Complex with about 20 proponents and opponents of a change to due process for psychiatric patients.
Reed’s department is seeking to reduce the amount of time the state has to spend in court in order to force someone who may be suicidal or homicidal into a psychiatric hospital.
“We believe it is important for people to get timely treatment,” said Reed, a clinical social worker. “Clinically, being able to provide timely care is the right thing to do for people.”
According to the Department of Vermont Health Access, the median time it takes to go through the current process is about 60 days. The Shumlin administration’s proposal is expected to reduce that period to less than two weeks.
Steven Costantino, the commissioner of the Department of Vermont Health Access, told the House Appropriations Committee on Thursday that Vermont is the only state with a process that takes longer than two weeks.
“I think Vermont is like the only state that does it this way, is what I’m hearing,” Costantino said. He also said there is a “direct relation” between how soon someone gets into treatment and how well that patient responds.
Lawmakers on the House Appropriations Committee expressed concern Thursday with the proposal from the two departments. On the same day, the House Human Services Committee said it wanted to figure out how to ditch the plan from the governor’s budget proposal. The administration says the change could save $5 million.
At the public forum Tuesday, two doctors from Rutland Regional Medical Center and the Brattleboro Retreat generally supported the state’s proposal. Advocates for psychiatric patients and former patients who attended the forum were opposed.
How the law would change things
Gov. Peter Shumlin’s administration is proposing to eliminate a portion of the state’s involuntary treatment law that requires Vermont’s family court to determine “whether there is probable cause to believe that the person was a person in need of treatment” when the Department of Mental Health had the patient hospitalized for an initial 72-hour period.
The department would eliminate the portion of the law that allows a court to decide unilaterally that the person should have a review by an independent psychiatrist. The law would change so that either the state or the patient’s lawyer “may” request a single independent psychiatric evaluation, but “only if the examination can be completed as to not cause a delay of the hearing.”
The department says it currently waits 10 to 20 days before having a hearing to determine whether a person will be forced into treatment; the administration is proposing to shorten the time period to seven days. Additionally, the law allows a judge to issue either party in the case a seven-day extension. The proposal would shorten that extension to five days.
Other major changes would come after a court orders a person to be hospitalized. The proposal would eliminate the portion of the law that allows a patient to be in a hospital “located nearest to the person’s residence except when the person requests otherwise or there are other compelling reasons for not following the preference.”
The proposal would expand the authority of the mental health commissioner and allow him or her to start a proceeding on involuntary medication if the patient refuses to take psychiatric medication “of the type or in the amount prescribed by the treating psychiatrist.”
The current law, which was most recently updated in 2014, allows the commissioner to start court proceedings for involuntary medication only if the person in custody refuses to take medication altogether.
Shumlin proposed this measure in his written budget — but not his budget speech or State of the State address — in January. The budget is balanced in part because it accounts for $5 million in savings — including $2.3 million in state money — by eliminating these legal barriers and getting people into treatment faster.
For an additional $2.2 million in state and federal savings, the Department of Vermont Health Access would seek to cap at 24 the number of outpatient psychotherapy visits a Medicaid patient can have in a year. Once a person hits the limit, the provider would have to seek prior authorization from Medicaid for the treatment to continue.
For $1.5 million in combined savings, the Department of Vermont Health Access also proposes to change its billing practices so it pays a lower rate for Medicaid-insured psychiatric patients if they end up being treated for a physical medical condition. Additionally, the department is booking $2 million in state and federal savings for cutting the rate it pays therapists for group sessions.
Supporters argue for faster treatment
Dr. Mark McGee, a psychiatrist at the Brattleboro Retreat, is one of the doctors supporting changes to Vermont’s involuntary treatment law. He cited stories from a 60-year-old woman with bipolar disorder and a 35-year-old schizophrenic woman who both said they wished they had gotten care sooner.
“There is a tremendous degree of what I believe to be unnecessary and inappropriate suffering that individuals are subjected to as they go through this process,” McGee said.
“I think time is really important in terms of treating these individuals,” he said. “Those individuals that actually benefit from additional time to treatment is relatively small.”
Dr. Gordon Frankel, a psychiatrist at Rutland Regional Medical Center, said his hospital admitted 140 psychiatric patients in 2015; of them, 111 were involuntarily committed, and 17 went through the involuntary medication process.
“In Rutland, we’re probably on the speedier end of getting through this process. Even with that we’re probably at an average of 30-something days of getting through the court-ordered treatment process,” Frankel said.
“Through this whole process, the patient is really deprived of their freedom,” he said. “For patients, many of them cannot comprehend the court process. It’s not easy to process, and it’s tough for them to engage.”
Jill Olson, a lobbyist for the Vermont Association of Hospitals and Health Systems, said her organization “has long supported getting to the judicial decision more quickly,” and that she would have more positions on the more specific legal changes in the future.
Ruth Grant, a member of the public, also supports the proposal. Grant said she has a very close family member who was diagnosed with schizophrenia as a child and has gone through the current court process for involuntary treatment.
“He went ragingly psychotic at age 18, but we couldn’t get him treated until age 20 when he became an imminent danger,” Grant said.
“The court hearings are all torture to him,” she said. “I call them court torture sessions. He thinks he’s being tried for crimes that he didn’t commit.”
“It is cruel and inhumane to leave him untreated, and it is just more cruel and inhumane to put him through this torture,” Grant said.
Opponents argue for due process
“We shouldn’t be here,” said Jack McCullough, the director of the mental health project at Vermont Legal Aid. McCullough said his office represents the vast majority of mental health patients during these involuntary proceedings.
McCullough opposes limiting the number of independent psychiatric evaluations. He said patients need two; the proposed changes would limit evaluations to one, provided it doesn’t delay the initial hearing. If the law is changed, McCullough said there would not be enough time for patients to get even one prior to the hearing.
“That means we’re going to see a lot more people going to trial, a lot more people who are being committed than would have been committed before,” McCullough said. “Neither the judiciary nor the Mental Health Law Project has the resources to handle all these additional trials.”
He said the probable cause process is not slowing things down, so eliminating it would not improve anything. “This is just something you’re doing because you can do it,” McCullough said.
He said there is no need to change the law to automatically combine a patient’s two cases — the case to be involuntarily committed and the case to be involuntarily medicated — because judges already allow that to happen if the state requests it.
“The record shows that, if anything, the Department of Mental Health is relying ever more heavily on force, and getting farther and farther away from the principle of voluntary treatment,” he said.
“The constant attacks on patient rights are unconscionable,” McCullough said. “The attempt to balance our mental health budget on the backs of our most vulnerable citizens is reprehensible.”
Reed, the commissioner, said in response: “This is not about the money to the Department of Mental Health. I’ve heard that repeatedly from folks, and I want to assure you it is not.”
Ed Paquin, the executive director of Disability Rights Vermont, said the claims that other states have speedier processes “are just blatantly untrue.” He said, “There may be states in which you can, without virtually any due process, involuntarily force drug someone. … I don’t think that’s a good thing.”
Michael Sabourin, a patient representative for Vermont Psychiatric Survivors, a nonprofit organization in Rutland, said there is “a high degree of misdiagnosis in psychiatry” and that expediting that mistreatment “steers people in the direction of being on disability.”
“If people get what they’re asking for now, it’s just going to be a system of coercion,” Sabourin said. “It’s not going to be patient-centered or family-centered or anything like that.”
Wilda White, executive director of Vermont Psychiatric Survivors, also opposes the changes. She said she experienced psychiatry first through her brother and then personally.
“Ultimately he received a diagnosis of schizophrenia, and we were told that he was unable to make a decision about his medical care,” White said. “I’m black, and my family didn’t like that.”
“The medical profession had not done well by us, and my family resisted it, and (doctors) made it so that my family no longer had a voice,” White said. She said she eventually became her brother’s guardian and allowed him to be forcibly medicated for years.
“He lost his thyroid because he was on both antipsychotics and lithium,” White said. “And he has diabetes because of these atypical antipsychotics that he was put on. … People say they did this for his own good. And he’s not my brother anymore. He’s slowly dying.”
“There are good reasons to reject these medications,” she said. “Whether you are sane or not sane, there are good reasons to reject these medications. And I’ve come to know this through personal experience.”
White said she was prescribed light therapy for seasonal affective disorder but the light made her psychotic for seven months. She said she also refused antipsychotics because she wanted to “heal from within” and avoid the risk of diabetes.
“What you are calling a delay in treatment was for me a time to heal,” she said. “If you had forced medicated me I would not have healed, and I would have lost all my resilience.”
