Rehabilitation through empowerment: adopting the consumer-participation model for treatment planning in mental health courts.

• Author: Kelly, McDaniel M.

CONTENTS INTRODUCTION I. THE MENTAL HEALTH COURT SYSTEM A. The Goals and Successes of Mental Health Courts B. Mental Health Court Structure and Operation II. BARRIERS TO VOLUNTARINESS IN MENTAL HEALTH COURT PARTICIPATION A. Mental Health Court Participants' Diminished Capacities for Voluntariness B. Structural Barriers to Voluntary Participation III. THE CONSUMER-PARTICIPATION MODEL FOR MENTAL HEALTH COURTS A. The Consumer-Participation Model and Improved Access to Information B. Consumer-Participation's Effect on Opponents' Legal and Practical Arguments Against Mental Health Courts 1. Constitutional Issues 2. The Americans with Disabilities Act 3. Informed Consent CONCLUSION INTRODUCTION

In 1773, the Governor of Virginia voiced his concerns that he was '"forced to authorize the confinement of [persons with mental illnesses] .. because of lack of appropriate services." (1) Over 200 years later, the problem is still with us. In 2011, the guards at Central Prison in Raleigh, North Carolina, held David Harold, a mentally ill inmate, naked in an isolation cell filled with feces and urine and denied him access to medical or mental health treatment. (2) Similarly, in 2012, the staff at the Colorado State Penitentiary mistreated another man, a schizophrenic and psychotic inmate convicted of stealing a Buddha statue worth $1,000 during a psychotic episode, by denying him access to proper mental health treatment. (3) This lack of treatment led to the Colorado man's sentence increasing from one to four years for the resulting uncontrolled behavior. (4) The 1773 Virginia Governor's concerns and the plight of both men illustrate that the incarceration of and inadequate care for people with mental illness in the American criminal justice system is an issue that predates even the United States, and the same problems--high recidivism rates and over-penalization, to name a few--persist today. (5)

That state and federal prisons incarcerate nearly two million adults with serious mental illness each year, often for terms far exceeding those given to non-mentally ill adults who commit similar offenses, compounds these problems. (6) Nearly sixteen percent of the total prison population is diagnosed with a severe mental illness, whereas only about four percent of men and two percent of women in the general population are diagnosed with similar mental illnesses. (7) The difficulty of providing adequate access to treatment contributes to these disproportionately long prison terms for the mentally ill. (9) Further, mentally ill prisoners often lack the ability to consistently follow prison rules and orders, exposing them to increased discipline. (9) These factors, though, are more related to mental illness than the actual crimes precipitating incarceration. (10)

In an effort to confront this problem in the late 1990s, states began developing diversion opportunities to avoid disproportionate punishment. (11) These opportunities came in the form of mental health courts. And, by 2013, the mental health court system had expanded to over 340 mental health courts in forty-three states. (12)

While mental health courts have been generally successful in reducing participant recidivism, increasing participant access to treatment, improving participant quality of life, and reducing government costs, (13) some scholars have questioned whether mental health courts' efficacy has come at too high a cost to participants' liberty interests. (14) The objective of this Note is to explore one of the espoused safeguards to participant liberty: the requirement that participation in mental health courts be voluntary. It suggests that, though structural and clinical barriers may inhibit voluntariness in mental health court participation, adopting the consumer-participation model employed in some private health treatment settings will improve mental health court participants' capacity for voluntary participation. Further, it suggests that the improved voluntarism that the adoption of this model obtains will help avoid several of the legal issues that mental health court opponents raise--conflicts with the right to a jury trial, the right to counsel, the Americans with Disabilities Act, and the informed consent doctrine.

For the purposes of this Note it is important to separate the voluntariness question from other important, related inquiries like competence and informed consent for treatment (a related but different inquiry). A competence adjudication is a preliminary (often presumed) threshold requirement for all criminal defendants, including mental health court participants. (15) Generally, the court must determine that a defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and ... a rational as well as factual understanding of the proceedings against him." (16) On the other hand, the informed consent inquiry, occurs at the point of clinical treatment and requires that participants (1) be informed of the benefits, risks, and alternatives to treatment; (2) understand those benefits, risks, and alternatives; and (3) voluntarily consent to the treatment. (17)

Though this inquiry may arise several times throughout the mental health court process (i.e., when treatment strategies change), its scope is relatively narrow--limiting voluntariness to only the point of treatment. (18) Unlike competence and informed consent, the voluntariness question is not confined to a specific time but continues throughout the mental health court process as the defendant makes participation choices, such as the decision not to withdraw. (19) Further, even when a defendant is competent and gives informed consent to treatment, issues may still arise as to whether the defendant's participation is voluntary--that is, whether the decision to participate is free of coercion and made with the understanding of its consequences. (20)

Part I of this Note is a brief overview of the mental health court system. It is broken into two subparts: first, a brief description of the system's goals and success; and, second, a brief overview of mental health courts' general structure. The theme here is that the term "system" is really a misnomer, and there is plenty of room for development.

In Part II, I introduce some of the barriers to achieving voluntary participation. This section also has two subparts: first, a discussion on target participants' reduced capacities; and, second, a description of the structural shortcomings in mental health courts. The general theme here is that target participants do not suffer from a depreciated decision-making capacity despite not having the tools to control their illnesses. Instead, it suggests that participants have a reduced capacity for voluntarism that can be improved through increasing education and empowerment.

Finally, in Part III, I discuss the possible adoption of the consumer-participation model from private mental health treatment as a tool for improving access to information and reducing coercion in the mental health court process. I suggest that this model will help alleviate some of the problems with voluntariness in mental health court programs. Further, I suggest that the benefits obtained from adopting the consumer-participation model also address many of the concerns that mental health court opponents raise.

1. THE MENTAL HEALTH COURT SYSTEM

   In order to understand the voluntarism discourse discussed in this Note, it is necessary to understand the mental health court framework. This section begins by discussing the purpose behind the development of mental health courts as a tool for improving criminal justice outcomes for cases involving mentally ill offenders. This section then addresses how mental health courts operate. Overall, this section illustrates that, while mental health courts appear to be achieving their goals, there is significant need for development and standardization of their practices--most importantly, improving the level of voluntary participation.

   1. The Goals and Successes of Mental Health Courts

      The primary purpose of mental health courts is to provide better outcomes for both the community and mentally ill offenders by reducing the disproportionate incarceration of mentally ill offenders and connecting them to treatment resources. (21) While mental health court practices vary widely among jurisdictions, (22) the Bureau of Justice Administration recognizes four common goals geared toward the realization of this primary purpose:

      [1] Increased public safety ... by ... lowering the high recidivism rates for [mentally ill offenders];

      [2] Increased treatment engagement by participants;

      [3] Improved quality of life for participants; [and]

      [4] More effective use of resources. (23)

      Mental health court opponents, while recognizing that these goals are paramount, believe that mental health courts are not the correct avenue toward achieving those goals. (24) Instead, they suggest that a multitude of different changes in the criminal justice and mental health systems would better achieve them. (25) Still, mental health courts have been, and will likely continue, spreading as they appear to achieve these goals.

      Reducing the high recidivism rates among mentally ill offenders is the top priority and measure of mental health court success. (26) Studies have shown that, among those who successfully graduate from mental health court programs, recidivism rates and contacts with the criminal justice system are significantly lower than the rates participants experienced before receiving treatment. (27) Further, studies have also shown that, when compared to mentally ill offenders who went through traditional processing, those who went through mental health court programs had significantly lower recidivism rates. (28) Though these studies use an imperfect proxy to measure recidivism--post-treatment arrest rates (29)--the reduction in arrest rates suggests that...