Chairman of the Commission and Director, Ohio Department of Mental Health.
President George W. Bush announced the President's New Freedom Commission on Mental Health, the first presidential mental health commission in twenty-five years, on April 29, 2002, in a speech in Albuquerque, New Mexico. This Article describes the workings and recommendations of the Commission with a focus on problems and opportunities at the interface of mental health care, the law, and criminal justice.
An Executive Order signed by the President outlined the Commission's charge: "The mission of the Commission shall be to conduct a comprehensive study of the United States mental health services delivery system, including public and private providers, and make recommendations to the President."1 The Executive Order also stated, "The goal of the Commission shall be to recommend improvements that allow adults with serious mental illness and children with serious emotional disturbance to live, work, learn, and participate fully in their communities."2 This focus on practical outcomes desired by consumers, families, and communities opened the door for examining implications for criminal justice; people with mental illness are not "participating in their communities" if they are incarcerated or engaged in criminal conduct- perhaps because their care was inadequate, or poor collaboration existed between mental health and law enforcement personnel.
Then-Governor George Bush, during the presidential campaign, pledged to create a commission to review mental health care. The first mention of the commission after the new administration took office was in a broad cross-disability action plan called the New Freedom Initiative, announced by the White House in February 2001. The initiative included ten proposals designed to "tear down the barriers that face Americans with disabilities today," and included an announcement that the mental health Page 908 commission would be created.3 Some New Freedom Initiative programs were launched in the first months of the administration. With the appointment of Charles Curie to head the Substance Abuse and Mental Health Services Administration (SAMHSA) in November 2001, the work to develop a framework for the commission could proceed.
National commissions examining mental health care are a rare occurrence. It has been a quarter-century since the Carter Commission, and more than two decades before that since the Joint Commission on Mental Health. Federal laws and regulations govern the operation of Commissions. The key laws are the Federal Advisory Committee Act (FACA) and the Freedom of Information Act (FOIA). These laws ensure that decisions by these bodies are made in the open, with appropriate public notice, and that records are public. A commission staff member is designated as the "FACA officer" responsible for assuring compliance and authorized to shut down a meeting if the law is violated. Once the core elements of a commission are in place, a federal agency, in this case SAMHSA, is designated to provide administrative support, and a charter establishing a budget and administrative parameters for the commission is approved by the relevant cabinet secretary.
The leadership for the Commission reflected on how to proceed with the daunting task set by the President, within the mere twelve months allowed for the task. Lessons from the experiences and results of the Carter Commission were still relevant a quarter century later. However, mental health care has changed dramatically. Deinstitutionalization accelerated, and the role of the federal government in financing care changed dramatically. Public sector mental health care was devolved to localities, new somatic and psychosocial treatments were developed, and authority and responsibility were made much more diffuse. The core problems in mental health care shifted from the heart of the state-managed public mental health system-specifically poor quality in and overuse of state hospitals-to settings in other systems such as jails and prisons, primary care, schools, and among the homeless.
Two sets of issues at the intersection of the law and mental illness are notable for how they have evolved in the past quarter century. First, the laws undergirding care and treatment for those with mental illness were in flux in the late 1970s, and are considerably more stable today. The Page 909 Supreme Court's 1975 decision in O'Connor v. Donaldson4 set in motion changes in state legislation governing involuntary commitment to hospitals. The essence of that decision-that people with mental illness, having committed no crime and presenting no imminent danger to themselves or others, cannot be involuntarily committed to an institution- led to changes in commitment law emphasizing those criteria that still justify commitment, including danger to self or others by reason of mental illness. The subtle, but very significant changes required by these laws, including care in different settings, lessened social control, and a move away from institutions, were playing out in the late 1970s.
At the same time, the deinstitutionalization movement was leading to major changes in the law regarding the structure, auspices, and organization of mental health care in the states. Ohio's mental health law is typical. Following the 1963 federal legislation signed by President Kennedy that began to emphasize community care, Ohio's 1967 legislation created a network of county-level boards to govern and manage community care. However, these boards had no control of state hospital usage or funds. Two decades later, the Mental Health Act of 1988 transferred control over institutional usage and funds to the boards, creating a unified governance approach. Thus, both dimensions of the mental health law were in flux in the late 1970s, and the changes that would result from legal reform were unknown at that time.
A second concern at the intersection of law and mental health is what has been termed the "criminalization" of mental illness. This problem is often expressed in terms of the many mentally ill individuals in prisons, many more than are in mental hospitals. There is no credible evidence, however, that the percentage of mentally ill inmates-about seventeen percent of the overall prison population-has changed much over the years. Nonetheless, the number of mentally ill individuals who come in contact with the police, the courts, and the jails is staggering. This dynamic is universally agreed to represent a failure of social policy, although the cause of the problem, deinstitutionalization, inadequate community care, and low-income housing, welfare reform, or changes in the mental health commitment laws, is fiercely debated.
The commission's work also follows major scientific and policy thrusts in mental health, including the Decade of the Brain, the White House Conference on Mental Health, and the reports of the Surgeon General on Mental Health, disparities in care for minorities, and suicide. These efforts elevated awareness of mental health issues but did not address the implications for care systems. The commission would need to consider scientific advances, and link them to the "real world" of mental health care. Finally, there were many new fiscal and political realities that Page 910 the commission would need to consider, such as the dynamics of the federal budget and the reality of future projected budget deficits.
Our early review of the work of the Carter Commission included conversations with Executive Director Tom Bryant. It was evident that the impact of the Carter Commission went beyond making recommendations. Given the rare occasion of presidential attention on mental health, using the commission's processes and report to galvanize change at all levels, not just the federal government, became an imperative.
A particularly useful resource to understanding the impact of the Carter Commission was an inventory of the progress made following its report and the National Plan for the Chronically Mentally Ill5 that followed. This review pointed out that many changes were achieved through staged, incremental, mid-range modifications to mainstream federal programs such as Medicaid, Medicare, and Social Security rather than through "big bang" reform measures, or increased support for specific mental health programs. In fact, the centerpiece of the follow-up to the Carter Commission report was the Mental Health Systems Act, enacted in the waning months of the Carter administration and then rolled back in the first budget under President Ronald Reagan. Ironically, the major recommendation and "accomplishment" of the Carter Commission was thus ephemeral, while "smaller" recommendations developed after the commission itself had a bigger impact.
These experiences of an earlier commission shaped our thinking. We were determined to create and develop detailed reports on components of mental health care through commission subcommittees. These reports, published later as working papers, could help create an agenda that could serve the field well in future years. However, they would also help the commission cover many aspects of a diverse field efficiently, and inform the report to President Bush. Engaging experts to advise the commission subcommittees would provide a deep level of knowledge on each issue, balancing the practical and clinical experiences of commissioners. And the subcommittees would provide an opportunity for leadership by commission members on topics important to them. A listing of the commission's subcommittees is provided in Table 1.
Table 1: Commission...