The increasingly blurred line between 'mad' and 'bad': treating personality disorders in the prison setting.

• Author: Hall, Donna L.
• Position: New York

In New York State, Mental Hygiene Law defines mental illness as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation." (1) It has long been acknowledged that individuals suffering from active symptoms of mental illness might not be fully responsible for their actions. This concept manifests in criminal law, as with the insanity defense, and also in civil arenas. Examples include the competence to make certain personal choices, such as making wills, choosing among treatment options, and being civilly committed.

The concept of diminished personal responsibility as a result of mental illness has historically been articulated in standards regarding the insanity defense, ranging from the M'Naughten Test to the American Law Institute Test. (2) Regardless of the exact standard, the underlying reasoning is that mental illness, by impairing a person's ability to think rationally or control behavior, arguably impacts the degree to which he is truly able to make choices independently and, by extension, is responsible for his behavior.

The role of mental illness in individual behavior and personal responsibility, however, is far from straightforward. There are instances where mental illness and its relationship to violent or criminal behavior are clear; take for example an individual who commits an act in response to delusional beliefs. Among mental health professionals, it is well accepted that psychotic illnesses and major mood disorders, diagnoses traditionally included within the category of serious mental illnesses ("SMI"), have the potential to lead to behaviors for which an individual may not be fully responsible. These illnesses have biological factors that are documented throughout the scientific literature, and, for the most part, have established effective, if imperfect, treatment regimens comprised of medications and other therapies. (3) It is also known that symptoms of mental illness vary in severity and may wax and wane over the natural course of the illness. Therefore, the mere presence of a diagnosis does not necessarily equate to lack of responsibility for behavior. Mental illness may account in part or in full for behavior, or may only be coincidental to that behavior. While it is important that individuals who are unable to think rationally or control behavior as a result of mental illness are not criminally sanctioned, it is also necessary to recognize that many individuals who have mental illness can in fact function competently and rationally when not symptomatic. There are also those who function well even while experiencing mental health symptoms. No diagnosis is in and of itself synonymous with functional incapacitation, symptoms fluctuate over the course of illness, and the degree of impact varies greatly from one person to the next. In that sense, failure to recognize that individuals with mental illness can be responsible for their own decisions contributes to the stigma of mental illness.

Treatment advancements beginning in the 1970s, including improvements in psychopharmacology, increasingly supported the notion that symptoms of SMI are often transitory and controllable. Legal requirements, such as the least restrictive level of care standard in commitment criteria as articulated in the landmark case Lake v. Cameron, (4) required changes in commitment practices with advances in symptom management. (5) Subsequent court decisions established protections for civil commitment hearings, as exemplified by Lessard v. Schmidt, (6) which established procedural requirements, and by Addington v. Texas, (7) which established the standard of proof necessary for involuntary civil commitment.

While court decisions have increasingly protected seriously mentally ill individuals from involuntary commitment or retention in a psychiatric facility without significant due process, a series of legislative actions, bolstered by court decisions, simultaneously increased the involvement of the mental health system in the treatment and control of criminally involved individuals, particularly those diagnosed with serious personality disorders. In Foucha v. Louisiana, (8) the Supreme Court drew a seemingly clear line in ruling that an insanity acquittee, with only antisocial personality disorder and no other active mental health diagnosis, despite remaining dangerous, could not be retained in a psychiatric hospital. (9) But, more recently, Kansas v. Hendricks (10) upheld the use of sexually violent predator laws on the basis that the goal was to treat individuals with a mental abnormality, including anti-social personality disorder, (11) rather than to punish them, thereby allowing for post-incarceration detention of convicted sex offenders under the auspices of a mental health institution. (12)

The onus placed on the public mental health system to provide treatment for such personality disorders is compounded by the fact that courts have also required clinicians to intervene and protect third parties who are in some way at risk of harm from a patient. (13) While this burden appears reasonable in some circumstances where danger results from serious mental illnesses, it takes on a much more onerous nature when the patient is severely antisocial or psychopathic, both when personality disorder is the sole diagnosis, and when personality disorder overlays an additional psychiatric diagnosis.

These efforts to expand the reach of the mental health system largely relate to those diagnoses--substance use disorders and personality disorders, for example--that, while contained within the Diagnostic and Statistical Manual of Mental Disorders ("DSM IV-TR") by the American Psychiatric Association, (14) are not typically considered sufficient to render an individual wholly free of personal responsibility for any misdeeds. (15) In contrast to SMIs, there is the question of whether personality disorders are true illnesses or an extreme of normal variation. (16) All people have personality traits, so the question is of degree of dysfunction. In addition, while personality disorders are in part the products of prior experiences, there remains the issue of individual choice.

While increased reliance on the mental health system to treat and control antisocial behavior is largely grounded in concerns for public safety, litigation and legislative actions in New York State serve to require intensive mental health programming for some individuals diagnosed with antisocial personality disorder who experience difficulty with prison structure. (17) The mandates have the effect of extending the role of diagnoses previously not considered appropriate for mental health management, or at least involuntary mental health care. (18) They also required the mental health system to increasingly provide intensive, residential programming to treat individuals who neither have a serious mental illness, nor are necessarily identified as high-risk for suicide. (19) This shift in the nature of the recipient population presents a significant challenge for mental health providers who are largely trained to work with more traditionally mentally ill clients. Moreover, it raises a variety of questions concerning the appropriate boundaries--or the appropriate interactions--between mental health and correctional programming when dealing with severely personality- and behaviorally-disordered individuals without the traditional SMI diagnoses. Among obvious questions are the following:

* What types of treatment modalities work to improve the functioning of personality-disordered individuals, and what environment is needed to implement those modalities?

* What are the costs to the individual who is placed under intensive mental health programming in the absence of a SMI?

* Which system--mental health or correctional--is better equipped to provide services to severely personality-disordered individuals without SMI?

1. HISTORY OF MENTAL HEALTH TREATMENT OF PRISONERS IN NEW YORK STATE

   In New York State, the role of mental health systems in providing services to prisoners has expanded throughout the last thirty years. In 1977, with the passage of Correctional Law section 402, the Office of Mental Hygiene assumed responsibility for the provision of mental health services for persons incarcerated in correctional facilities. (20) Section 402 established Central New York Psychiatric Center ("CNYPC") as the facility to serve this population. (21) For almost a century prior to the enactment of section 402, all correctional mental health services were provided by the New York State Department of Correctional Services ("DOCS") at Dannemora and Matteawan State Hospitals, commonly referred to as institutions for the "criminally insane." (22) Dannemora served mentally ill inmates sentenced to DOCS facilities, while Matteawan served those defendants found incompetent to stand trial or not responsible for criminal conduct due to mental disease or defect. (23) Matteawan also served individuals, within a parallel system of institutional care operated by the Department of Mental Hygiene ("DMH"), who were deemed too dangerous to be served in civil confinement state hospitals. (24)

   The activism and civil rights movement of the 1960s was not limited to combating centuries of racial injustice. A series of landmark court decisions also altered the landscape in which correctional mental health services would be delivered, ultimately resulting in the New York State Legislature enacting Correctional Law section 402. (25) Four seminal decisions were key to the reconfiguration of New York's correctional mental health system of care. The Baxstrom v. Herold (26) and Schuster v. Herold (27) decisions led to the closure of Dannemora State Hospital; the Negron v. Ward (28) decision resulted in a consent decree...