The Right of Jailed Psychiatric Patients to Appropriate Treatment:A Lesson from Puerto Rico that Applies to Kentucky Pre-Trial Mental HealthAnd to the Predicament of All Psychotics Who Get ArrestedThose who have been following this web-log know that I am quite keen to promote the genuine mental health concerns that are posed by criminal incarceration. I "speak" from Kentucky, a state I know well as I have lived here all my life, and have worked in the criminal justice system myself prior to going onto psychiatric disability, where almost
no stimulus could net a cop determining that your shouting-at-the-sky is more a matter of "disorderly conduct" or "disturbing the peace" than a psychiatric syndrome. There is
some psychiatry for the sap like me who winds up in prison (post-convicted status)-- a contingency that is a lethally facile occurrence, whether the mental patient is guilty or innocent; and there is a tinier amount of psychiatry in the major metropolitan jails of Louisville and Lexington and Northern Kentucky and peripheral counties;
but in the rural counties, the "South," the "West," and "East" of Kentucky the pre-trial mental health services do not appear to be qualitatively different than that extant in Puerto Rico some years back, which was the subject of a federal lawsuit, and subsequently the topic of this entry.In the action
Feliciano v. Barcelo, 497 F.Supp.14 (1979), the United States District Court in Puerto Rico declared the entire correctional system (pre-trial and post-convicted) to be a violation of the Constitutional prohibition (8th Amendment) against "cruel and unusual punishment." In no small measure, the issues with which this lawsuit deals pertain to mental health of inmates (rather the lack thereunto for decompensated prisoners.) Under the pre-trial Puerto-Rican system, essentially
zero input from a psychiatrist or other mental health professional was involved in identifying or treating the psychotic inmates in the system; instead guards would make a "lay assessment" that an individual was
loco and accordingily put her/him in dungeon-like "calabozos"-- tiny enclosures which lacked plumbing and virtually every other human amenity. The total number of psychiatric cases in the correctional system then was not known: medical records almost did not exist and contained little if any psychological information. In the resulting opinion on which I report here, Judge Perez-Gimenez wrote,
"The overcrowding, lack of sanitation, the absence of health facilities or adequate medical or psychological services, the triple bunking of young adults, the failure to protect the pretrial detainees from attack...The government's obligation to provide medical care, recognized in the legislation of Puerto Rico, if not properly met, may produce physical torture or lingering death in the worst cases and in less serious cases, may result in pain and suffering. Deliberate indifference to the serious medical needs of the inmates constitutes "unnecessary and wanton infliction of pain" prohibited by the Eighth and Fifth Amendments...The medical program or better said, the lack of it, in the institutions operated by the Puerto Rico Administration of Correction violates the Constitution." ( ibid., pp. 33-34.)..."The failure to hospitalize known mentally ill under conditions where the penal institution personnel know that they cannot provide medical or psychiatric services constitutes cruel and unusual punishment." ( ibid., p. 35)Accordingly, it was ordered that,
"The psychotics must be removed from the penal institutions. Nothing we have seen is more depressing than the sight of young men totally out of contact with their surroundings and reality, stripped naked and left to their delusions and hallucinations without the benefit of working toilets, toilet paper, drinking water, beds, matresses or linen, human attention, medical care or medications. The prisons cannot cope with these sick persons. All the identified psychotics or severe mentally ill must be removed forthwith and placed by the Commonwealth in proper psychiatric hospitals."Every incoming inmate, whether pretrial detainee or convicted prisoner must have a complete screening medical examination within one week from the date of his admission...Not only must there be a medical screening of the inmates, there must also be psychiatric screening to determine which inmates are so seriously ill as to require hospitalization in a psychiatric facility outside the Administration of Correction and to determine which require treatment and the institutions...Each inmate who enters the penal population or the pretrial detainee population of the facilities operated by the Administration of Correction is entitled to continue to receive any life-supporting medication, prescription or special diet tha he had in civilian life. Each inmate has the right to receive medications, prescriptions and diets as they have been prescribed by a physician while the inmate is incarcerated." ( ibid., pp.37-38.)This is as much of this rather-long federal opinion on which I wish to report. What is important to note is that
this is still valid case-law: I "Shepard-ized" the decision and found that while it has been cited many times, it has not been "over-ruled."Now it is fair to say that I am getting much feed-back that in Kentucky (especially rural) jails, the conditions for mental health consumers who get "caught up in the System" would-- in a fair judge's mind -- be only a little different than those reported in this legal case from Puerto Rico. Continental Americans are accustomed to thinking of Puerto Rico virtually as a "Third World" venue: they may be surprised to learn than medical/psychiatric treatment of inmates in Kentucky jails, the South (probably), and elsewhere here resembles quite closely this "Third World" condition. [Those who would like to read a specific example of what happened when a mental health consumer from New York City -- visiting our Kentucky mountains-- ran out of gasoline-- and was arrested after "knocking on doors" -- thereupon to lose all and to be deprived indefinitely of requisite psychiatric treatment-- should read my entry on this matter in this blog, date-of-entry Saturday, September 23, 2006.]
This is a "lock-up crazy" state, this Kentucky: our hillbilly singing and culture, known to much of the world, confirms this; it corroborates with everything I knew as a pretrial forensic/correctional psychiatric worker; it corroborates with my own-- admittedly limited and "innocent" scrapes with the law; therefore I have much reason to believe that the reports I am getting of under-treatment in Kentucky jails for psychiatric cases is "the tip of the iceberg," whose body is an immense social problem.
What is more, Kentucky is
last in the delivery of all the states in a recent NAMI report, "Grading the States," issued March 1, 2006. We shall
drift even further and further behind with the recent cut-backs in mental health services from the local CMHCs (Community Mental Health Centers), which included the most-gracious Patient Assistance Program (PAP), affording the distribution of "samples" from psychopharmaceutical companies to mental patients. We certainly can anticipate that large numbers of mental patients will be cast-adrift.
Where will they go? Why, they will often go-- if they do not die in gutters or under bridges in Kentucky-- to JAIL. This inevitability creates the rationale for my discussion of this federal case, and my lament thereafter.I am for my part holding my own. I shall do my best to "avoid the skids." But I am angry as hell and present here a tool-- legal means, motive, and opportunity-- for all of us "grunts" to get to work and work and work and work.
--- Vernon Lynn Stephens, M.S.S.W.
D.S.M. IV # F31.2
Telephone Number: (502) 56105419
E-Mail:
freethink@bellsouth.net
The "Washout" Period in the Bullitt County JailAnd Other Correctional Facilities in Kentucky:One Peril for the Psychiatric Patient Who "Winds-Up-In-Trouble"In this "Dark and Bloody State"From authoritative, though anonymous, sources, I have learned that the jail in Bullitt County-- situated just south of Louisville here-- has resorted to a "washout" period for drugs, including psychotropic drugs for psychiatriatric patients immediately released from the hospital. The "washout" period is a matter of eight (8) hours, and I am told by an expert in psychopharmacology that the degree of medical peril associated with the use of even the most-vital psychotropic or mood-stabilizer would have been not-too-grave. However, I happen to know of jails in Kentucky that do essentially
no psychopharmacology for inmates, with Kentucky Correctional Psychiatric Center (K.C.PC.)-- which for pre-trial services is officially but a center for determining competency-to-stand-trial--as really the only place where pre-trial correctional mental health services are provided in the Commonwealth / State. This means going to K.C.P.C. in an unmedicated, probably "crazed" state for a few weeks, getting what would pass for psychiatric treatment, then back to jail where again there will be no psychtropics or mood stabilizers [!!! then
most of the time to go on to prison anyway, as except for the rich, "there ain't no insanity defense"!!!]
In the counties around Louisville as well as in Louisville, jail mental health does exist in a subdued way; the same may be said generally for the Bluegrass Area ( outsiders read "top-of-the-triangle-of-Kentucky") ; but in the rurality and mountains the reverse abjectly is true:
for the mental patient in such places -- even with all the "turn-key training" and regional-jail-movement and professed "sensitivity"-- Kentucky's jails are DANGEROUS and MENTALLY HAZARDOUS places.I strive at all costs to be fair. I have not heard the "side" of the Bullitt County jail here on its policy of the "washout period." Nor do I wish to be a demogogue in my advocacy. However, this policy of depriving recently-hospitalized mental patients of prescribed medications does concern me, in particular because I feel
certain that this case is one-of-the-more-benign-examples of a system that is, by all appearances,
corrupt.
In this entry tonight, I shall examine two aspects of this untoward tendency not to provide proper medical and security arrangements for mental patients in jails here, the
legal aspect-- for those who feel that the pre-trial correctional system in Kentucky is violative of the 8th Amendment of the U.S. Constitution (and its Kentucky Constitutional equivalent); and then the
policy aspect-- for those who feel (as I) that reasonable and realistic planning, funding, and programmatics-- as well as "eternal vigilance"-- are the ultimate keys to correcting this problem of horrific proportions. My aim is not exactly to "please" anyone, although clearly my sympathies emotionally and volitionally belong with the lot of the mental health consumers who have happened into one of Kentucky's "dungeon-throwbacks."
The Eighth Amendment to the U.S. Constitution briefly reads,
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." All of the three clauses have been interpreted with immense latitude, and the third, on "curel and unusual punishment" is really the only "real stuff" that a lay-person like me can point to as having been the avoidant practice of wiggy jurist who have alway tried to modify and even "get out of" what the Founding Fathers actually meant in the first place (using the criterion of "common sense" if not "strict construction.") Of only very late
actual practice comes the requirement that -- on pain of violating the Eighth Amendment-- jails and prisons must provide for the safety and medical needs of their inmates (
Cortes-Quinones v. Jimenez-Nettleship, 842 F 2d 556, 558.) By immediate extension, this would mandate the segregation of mental-patients from non-mental-patients, and provision of the appropriate panoply of psychiatric services for those affected (
Morales-Feliciano, 497 F. Supp. at 37-40.)
In the 1970s, the hey-day of legal involvement to obtain rights for jail and prison inmates, numerous "paper" lawsuits were sustained, but in
practice, "where the rubber meets the road" in this earliest 21st century, all of that is but a memory, with tombstones-and-bones hither and yon to remind us of those heady times, when social workers thought that, at long last, we could "shake some action" into correctional psychiatry. (Fools we were!) In point fine, jails and prisons can hire the best of great lawyers, and with a sympathetic public can "roll back" even soundly-reasoned case law whose logic and analysis "cuts to the quick" of this fecal impaction called
penal law. Routinely, even quite modest claims for amenities (including medical treatment) in class actions have been "turned down" on appeal ( e.g.
Clark v. Armontrout 28 F. 3d 71 [1994]), and with considerable success prison and jail official have been able to claim a form of "sovereign immunity" on the basis that they as functionaries of government "can do no wrong [in this particular matter]"; the Latin legal principle on which this notion is based is phrased, exactly,
"Rex non potest peccare!"-- "The King can do no wrong!"-- an utterance which is certain to raise the deepest hackles of any North American. Such qualified immunity can also be applied to prison/jail officials who fail to provide medical treatment for an inmate (
Osolinski v. Kane, 92 F. 3d 934 [1996], p. 939.) In other words, we are a long, long way separate in time from the era when Class Action Lawsuits and Consent Decrees governed-- even paralyzed-- the correctional system, although in all I would have to say that by far the more good came of this legal action than would have been accomplished by utter do-nothing indifference.
But it
is time to move on. We
need to move on, because it always was important to remember that the goal of all this court-battle was not to have public arguments, but to speak responsibly to real condition, real need, real danger, that is inherent in the
status quo of the correctional mental health system. These legal cases do have their place-- I am in no wise in favor of
carte blanche tort reform--
but the really ethical and responsible and effective-- and-- dare we say it-- the HUMANE thing would be to accomodate this malignancy as though it were something besides inconvenient detritis, to be stuffed into the least-conspicuous ash-can.I cannot call it "illegal" that the Bullitt County Jail-- or almost any rural jail in Kentucky-- has something akin to a brief or extended "washout period." I do not know what they do with "brittle" diabetics or heart patients who have to take digitalis frequently, etc., etc., but certainly
in tone and spirit this refusal to give mental patients psychopharmacological agents (hardly any of which have any addictive potential, and at any rate the mildly addictive "head meds" are
never administered in jail) flies in the face of cooperation with
recommended medical treatment. Here I do not fault the "good faith" of correctional administrators, but their "good-will" for complying with proper medical treatment.
In a larger, prison-demographic sense, the mentally ill are a malapropism to "manage" using conventional correctional procedures. They
do have some potential to be violent-- a feature of my cohort which is much-overtouted; but what is more and exactly to the point is that the mentally ill tend to be
unpredictable, particularly if the "turn-keys" should do the tom-fool thing of not letting psychotics have their "chlorpromazine" or whatever it takes to mellow them out. [Chlorpromazine is the cheap, old-fashioned stuff. Really cheap. Oldest.]
Yet the risk the mental patient may be to others does not compare to the management risk she/he may pose to herself/himself. Patients "who go to pill-call" [i.e. are on psychiatric rolls] are routinely tricked, robbed, beaten, raped, mutilated and murdered. Seldom if ever is anything "done about it."
What is even more diabolical is that
anti-social inmates in Kentucky are likelier than
psychotic patients to "go to K.C.P.C." from jail or prison precisely because the jailers "want a breather from this guy," which is a complete violation of the letter and spirit of the Consent Decree which brought accomodation for the mentally ill at the afore-mentioned facility (housed inside of Luther Luckett Correctional Complex, in LaGrange.)
None of this is privy knowledge to me. For the general problem of dealing with the mentally ill given a correctional mandate, I would refer you to the still very fine-- if now a bit dated--
Out of the Shadows: Confronting America's Mental Illness Crisis, by E. Fuller Torrey, M.D., John Wiley & Sons, New York, New York, 1997, pp. 25-42. Clearly, Dr. Torrey illustrates that some form of segregation of the mentally ill is a desideratum, and he later goes on to persuasively argue that deinstututionalization has rather "hamstrung" police and courts into using the jail-option owing the near-impossibility of acquiring hospital bed space for psychiatric cases.
What is to be done? We no longer operate in the social milieu of the 1970s, where the "big thing" was to litigate prisoner's rights cases. However, as I have tried to outline above, these legal actions are but a "flash in the pan" and mean nothing unless policy-makers are moved to administer correctional mental health in a more-responsible manner. This will accordingly not require a
lawsuit, it will require a
landslide (socially.) One needs to get out and in the words of Abolitionist Frederick Douglass, "Agitate, Agitate, Agitate!"
And how do we do that? If you live in Kentucky, you: 1. will be affected in some way by mental illness-- it's a "wacky" place or; 2. will be affected by the cops, courts, and corrections-people (we have more people in lock-up percentage-wise than the Gulags of Russia.) So go out an knock on every door right now, telling them about the injustices of correctional mental health, particularly
vis a vis the jails.
Don't like that plan? Then research your topic, get a computer and a link with Internet, and "sound off" on a blog or Google Base.
That, I promise you, will have been the magic "levelizer" of the future, for with this keyboard and knowledge and utter utter honesty, you can get
our landslide.
A higher percentage than half of the American population is now "wired up" to the Web. Potentially this strategy of consciousness-raising will make for phone-calls, votes, decisions, and finally rational administration of services for the mentally ill in (Kentucky's) jails.
--- Vernon Lynn Stephens, M.S.S.W.
D.S.M. IV # F31.2
Telephone: (502) 561-5419
E-Mail: freethink@bellsouth.net
