Mitchell Hamline
Law Journal Of
Public Policy and Practice

The Quadriga

close up photo of chain link fence with out of focus buildings in the background
The Quadriga (March 17, 2021)

The Need for Early and Continuing Mental Health Treatment as shown by the COVID-19 Pandemic

By Katy Rollins*

Almost forty years since the move towards deinstitutionalization, the debate regarding how to best serve those with mental illness continues. After the campaign for deinstitutionalization began in the 1980s, a number of individuals with mental illness lived on the street after their release from state psychiatric hospitals with nowhere else to go.1 To this day, unhoused, mentally ill individuals recently released from hospitalization are more likely to utilize emergency health services and homeless shelters, face an increased risk of assault, and are often subject to incarceration.2

States have taken steps to improve the availability of mental health care and divert those with mental illness away from prison.3 Minnesota uses mental health courts to work with criminal defendants whose criminal behavior likely resulted from underlying mental health problems.4 Members of the Minneapolis City Council are considering forming a team of mental health professionals to answer certain crisis calls in place of the police.5 State civil commitment law also allows for court-ordered early intervention and involuntary outpatient treatment, in the event an individual doesn’t meet the civil commitment standard for inpatient treatment.6

Despite these efforts, a staggering number of people with mental illness remain in prison, receiving minimal treatment, if any at all.7 Not only does this raise concerns of inmate safety and ongoing health, but “the presence of inmates with psychological problems was the most serious concern for correctional personnel,” behind overcrowding.8 A 2016 report by the Minnesota Office of the Legislative Auditor noted that reliable data as to the number of inmates assessed for mental illness has not been collected, but about one-third of jail inmates are on medication for mental illness.9 Nationally, and outside of the criminal system, nine percent of patients hospitalized for mood disorders and approximately fifteen percent of patients hospitalized for schizophrenia are readmitted under the same diagnosis within thirty days of their release, compared to only 3.8% of patients admitted for other reasons.10

Incarceration and involuntary hospitalization impact the individual committed, their family, their community, and the taxpayers.11 Naturally, this impact is magnified when an individual is subject to multiple imprisonments or hospitalizations. Prevention, early intervention, and maintenance of treatment are crucial to improve patient outcomes,12 hopefully leading to lower rates of incarceration and involuntary hospitalization for individuals with mental illness. Reducing the number of individuals in these restrictive settings should be deemed especially important considering the COVID-19 pandemic. Further, as a result of COVID-19, visitation to hospitals and correctional facilities is greatly restricted, creating an additional strain on patient and inmate mental health.13

A. The Coronavirus Pandemic & Response

On January 7, 2020, Chinese authorities identified and isolated what would soon be known as COVID-19.14 The outbreak quickly spread through Asia and Europe,15 and on January 22, 2020, the United States reported its first confirmed case of the novel coronavirus.16 States began instituting stay-at-home orders, the earliest being California on March 19, 2020.17

For the general population, the Center for Disease Control and Prevention advises physical distancing, frequent hand washing, face coverings, and surface cleaning to mitigate the spread of COVID-19.18 However, many of these precautions are unworkable in a prison setting due to close quarters and insufficient staff.19 In response, prisons have instituted restrictions on who may enter the prison, greatly reducing the availability of mental health services.20

Unhoused individuals face similar difficulties.21 Making a bad situation worse, about thirty-three percent of unhoused individuals suffer from untreated, serious mental illness.22 Further, studies suggest that, conservatively, about seven percent of those suffering from a serious mental illness who have been recently released from psychiatric hospitalization, whether involuntary or voluntary, will become unhoused within two years of their hospitalization.23 As its done for prisons, the CDC has issued guidance for those organizations offering housing and services to unhoused populations.24 Despite such guidance, many cities are being forced to consider alternatives to shelters as the virus continues to spread quickly among those experiencing houselessness.25

During a pandemic of this magnitude, the substantial overlap between those housed in these high-risk environments or experiencing houselessness and those with a diagnosis of mental illness reinforces the need for treatment continuity and reintegration services to keep these individuals safe and healthy. Beyond the individual benefits, early and continued treatment of mental health issues, along with sufficient government and community support, will help to reduce recidivism and hospitalization of these individuals, thereby reducing the strain on jails, prisons, and hospitals not only during a pandemic, but overall.

B. Mental Health Services in the United States

The process to reduce the population in state mental hospitals began relatively soon after the development of more effective anti-psychotic drugs, based on the belief that with these medications, individuals would be better equipped to live and work in their community.26 States instituted higher civil commitment standards, and the federal government began to provide funding for “community mental health centers” to provide treatment to those transitioning out of state hospitals.27 However, state mental hospitals closed at a rate faster than these facilities could open, despite available funding, as residents in the area in which these centers were to be built would often push back on their development.28

With nowhere to go, patients were left in limbo. In Olmstead v. L.C., the United States Supreme Court held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.”29 In that case, two women with mental illnesses were institutionalized despite a determination they were fit to be released to community-based care.30 Articulating the states’ duties when it came to providing community-based care, the Court held that:

States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such a placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.31

Justice Ginsburg further stated that it is not the “ADA’s mission to drive States to move institutionalized patients into an inappropriate setting, such as a homeless shelter.”32

Yet, many times, upon release, patients end up in just that inappropriate setting. As discussed above, those released from these hospitals often wind up houseless and at a high risk for incarceration.33 Once in prison, mental health services can be limited, depending on the state in which the individual is incarcerated.34 For example, Georgia budgeted only $526 per prisoner for mental health care in the fiscal year 2003–2004.35 Comparatively, California budgeted $1513 per prisoner for the same year.36 Many mental health services in prisons are also provided by volunteers, whose admittance to prisons have been largely suspended during the COVID-19 pandemic.37

C. Analysis

In introducing new mental health policy, it is imperative to consider the potential impact the legislation may have.38 A term initially coined by David Wexler, therapeutic jurisprudence, “presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law can have therapeutic and anti-therapeutic consequences.”39 In supporting an “ethic of care,” therapeutic jurisprudence requires that “law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and when consistent with other values law should attempt to bring about healing and wellness.”40 Such an approach to mental health policy does require that individuals’ due process rights are taken into account, making it arguably more difficult for states to implement policies requiring continuity of care for individuals in and out of state custody. However, current policies already present significant problems for the liberty interests of individuals with mental illness, as discussed above.

Even considering the current legal framework and budgetary constraints, there are steps states, and even individual prisons, can take now to ensure inmates with mental illness are physically, but not socially, isolated, receiving treatment while incarcerated, and able to access treatment upon release. “[W]hen continuity of care is disrupted in an individual’s course of treatment, that individual is more likely to relapse or decompensate.”41 As such, prisons and hospitals will be even more overwhelmed if COVID-19 disrupts mental health services for those civilly or criminally committed unless active steps are taken to prevent such a disruption. Further, subjecting inmates to isolation due to the pandemic is necessary for their physical health but may compound the consequences of a lack of counseling.42

First, if prisons must continue to institute restrictions on the individuals who can enter the facility, they must prioritize providing free telehealth to inmates for both physical and mental ailments. The benefits of telehealth services would extend beyond the pandemic. One study found that telepsychiatry could save prisons $12,000 to $1 million each year “by reducing travel for the provider, decreasing overutilization of other medical services such as laboratory work, increasing medication compliance, and speeding diagnosis via reduced waiting or consultation time.”43 But beyond mere financial savings, incarcerated people would likely experience better health outcomes as well. Due to the decrease in travel time required by the provider, more patients can be seen.44 Further, for some conditions, like depression, telepsychiatry may actually be more effective than face-to-face visits.45

Second, to decrease the effects of social isolation, prisons should waive the cost of phone calls and video visits to family and friends throughout the pandemic. While the Federal Bureau of Prisons has waived these costs in response to the coronavirus,46 states have mostly failed to follow suit.47 Fortunately, Minnesota’s Department of Corrections provides two free five-minute phone calls a week and has added one free fifteen-minute video visit each week.48 An additional fifteen minutes can be purchased for $3.50.49 However, as our country goes through one of the largest economic downturns of our lifetime due to the pandemic, prisoners and their families have even less resources to spend on such calls and maintaining a connection to community is one of the greatest factors in reducing recidivism.50 As such, for the good of incarcerated individual and their family, prisons must take further steps to ensure inmates are able to stay connected.

D. Conclusion

COVID-19’s impact on our communities is likely to be long-lasting. Those in traditionally underserved populations, including the mentally ill and incarcerated, are likely to suffer these effects exponentially. States must ensure that mental health care continues to be available to these populations, while maintaining proper physical distancing and hygiene, so the potential of release and successful reintegration does not become more minute. In closing, however, it is important to note that these services are essential all the time—not just during a pandemic—and our government should be investing heavily in bulking up our mental health infrastructure to better serve our communities, reduce rates of incarceration and houselessness, and improve overall health.

Footnotes

*Katy Rollins is a 3L at Mitchell Hamline, interested in exploring harm reduction policies on the path to abolition of the prison industrial complex. Almost forty years since the move towards deinstitutionalization, the debate regarding how to best serve those with mental illness continues. After the campaign for deinstitutionalization began in the 1980s, a number of individuals with mental illness lived on the street after their release from state psychiatric hospitals with nowhere else to go

  1. See Serious Mental Illness and Homelessness, Treatment Advoc. Ctr. (Sept. 2016), https://www.treatmentadvocacycenter.org/evidence-and-research/learn-more-about/3629-serious-mental-illness-and-homelessness. ↩︎
  2. How Many People with Serious Mental Illness are Homeless?, Treatment Advoc. Ctr. (July 25, 2014), https://www.treatmentadvocacycenter.org/fixing-the-system/features-and-news/2596-how-many-people-with-serious-mental-illness-are-homeless. ↩︎
  3. See generally State Specific Data, Treatment Advoc. Ctr., https://www.treatmentadvocacycenter.org/browse-by-state. ↩︎
  4. See Hennepin County Mental Health Court, Minn. Jud. Branch, http://www.mncourts.gov/mncourtsgov/media/scao_library/Drug%20Courts/4th%20District/Mental%20Health%20Court/Criminal-Mental-Health-Court-Brochure.pdf. ↩︎
  5. Jackie Renzetti, Minneapolis Considering Swapping Police with Mental Health Professionals for Some Calls, Bring Me the News (Nov. 16, 2020), https://bringmethenews.com/minnesota-news/minneapolis-considering-swapping-police-with-mental-health-professionals-for-some-calls. Programs like this have been successful in other cities. See Grace Hauck, Denver Succesfully Sent Mental Health Professions, Not Police, to Hundreds of Calls, USA Today (Feb. 6, 2021), https://www.usatoday.com/story/news/nation/2021/02/06/denver-sent-mental-health-help-not-police-hundreds-calls/4421364001/. ↩︎
  6. See Minn. Stat. §§ 253B.065, 253B.097. ↩︎
  7. H. Richard Lamb & Linda E. Weiberger, Persons with Severe Mental Illness in Jails and Prisons: A Review, 49 Psychiatric Servs. 483, 486 (Apr. 1998). ↩︎
  8. Treatment Advoc. Ctr., Serious Mental Illness Prevalence in Jails and Prisons (Sept. 2016), https://www.treatmentadvocacycenter.org/evidence-and-research/learn-more-about/3695. ↩︎
  9. Minn. Off. of the Legis. Auditor, Mental Health Services in County Jails 1 (Mar. 2016), https://mn.gov/dhs/assets/mental-health-services-in-county-jails-summary_tcm1053-435745.pdf. ↩︎
  10. Kevin C. Heslin & Audrey J. Weiss, Hospital Readmissions Involving Psychiatric Disorders, 2012, Agency for Healthcare Rsch. & Quality 3 (May 2015), https://www.hcup-us.ahrq.gov/reports/statbriefs/sb189-Hospital-Readmissions-Psychiatric-Disorders-2012.pdf. ↩︎
  11. See e.g., Rüsch et al., Emotional Reactions to Involuntary Hospitalization and Stigma-Related Stress Among People with Mental Illness, 264 Eur. Archives Psychiatry & Clinical Neuroscience 35, 35 (May 2013), https://doc.rero.ch/record/326083/files/406_2013_Article_412.pdf; Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent Children, Nat’l Inst. of Just. (Mar. 1, 2017), https://nij.ojp.gov/topics/articles/hidden-consequences-impact-incarceration-dependent-children; Craig Haney, From Prison to Home: The Effect of Incarceration and Reentry on Children, Families and Communities, U.S. H.H.S.: Off. of the Assistant Sec’y for Plan. & Evaluation (Dec. 2001), https://aspe.hhs.gov/basic-report/psychological-impact-incarceration-implications-post-prison-adjustment. ↩︎
  12. Mental Health Am., Prevention and Early Intervention in Mental Health, https://www.mhanational.org/issues/prevention-and-early-intervention-mental-health. ↩︎
  13. Cary Aspenwall et al., Coronavirus Tracker: How Justice Systems are Responding in Each State, The Marshall Project (last updated Feb. 2, 2021), https://www.themarshallproject.org/2020/03/17/tracking-prisons-response-to-coronavirus; Karen De Claire & Louise Dixon, The Effects of Prison Visits from Family Members on Prisoners’ Well-Being, Prison Rule Breaking, and Recidivism: A Review of Research Since 1991, Trauma, Violence & Abuse (2015), http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.846.8926&rep=rep1&type=pdf; Bret S. Stetka, Life in Jail, Made Worse During COVID-19, Hospitalist (Apr. 16, 2020), https://www.the-hospitalist.org/hospitalist/article/220860/coronavirus-updates/life-jail-made-worse-during-covid-19. ↩︎
  14. Id. ↩︎
  15. Id. The World Health Organization releases daily reports tabulating totals of confirmed cases and deaths, as well as information regarding transmission and research. See World Health Org., Coronavirus Disease (COVID-19) Situation Reports, https://www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports/. ↩︎
  16. CDC, Cases of Coronavirus Disease (COVID-19) in the U.S. (updated Feb. 10, 2021), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html. ↩︎
  17. Sarah Mervosh & Jasmine C. Lee, See Which States are Reopening and Which are Still Shut Down, N.Y. Times (updated Feb. 10, 2021), https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html. ↩︎
  18. CDC, Coronavirus Disease 2019 (COVID-19): Community Mitigation Framework, (updated Oct. 29, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/community-mitigation.html. ↩︎
  19. See Brie Williams et al., Correctional Facilities in the Shadow of COVID-19: Unique Challenges and Proposed Solutions, HealthAffairs (Mar. 26, 2020), https://www.healthaffairs.org/do/10.1377/hblog20200324.784502/full/. ↩︎
  20. Gregory Powers, Nancy Baum, & Marianne Udow-Phillips, Addressing the Behavioral Health Needs of Michigan Prisoners During the COVID-19 Pandemic, Univ. of Mich.: Ctr. for Health & Rsch. Transformation (Apr. 17, 2020), https://chrt.org/publication/covid-19-rapid-response-research-meeting-the-behavioral-health-needs-of-michigans-prison-population/. ↩︎
  21. See Rick Paulas, “We’re on Our Own”: Working in a Homeless Shelter is a Nightmare Right Now, Vice (Apr. 16, 2020), https://www.vice.com/en_ca/article/jge788/were-on-our-own-working-in-a-homeless-shelter-is-a-nightmare-right-now. The impact on racial and ethnic minorities was similarly ignored initially. See Manish Pareek et al., Ethnicity and COVID-19: An Urgent Public Health Research Priority, Lancet (Apr. 21, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30922-3/fulltext. ↩︎
  22. How Many People with Serious Mental Illness are Homeless?, Treatment Advoc. Ctr. (July 25, 2014), https://www.treatmentadvocacycenter.org/fixing-the-system/features-and-news/2596-how-many-people-with-serious-mental-illness-are-homeless. ↩︎
  23. Daniel B. Herman et al., Homelessness Among Individuals with Psychotic Disorders Hospitalized for the First Time: Findings from the Suffolk County Mental Health Project, 155 Am. J. Psychiatry 109, 110 (Jan. 1998); Mark Olfson et al., Prediction of Homelessness Within Three Months of Discharge Among Inpatients with Schizophrenia, 50 Psychiatric Servs. 667, 667 (May 1999). Other studies have suggested the rate is much higher.  Studies in Massachusetts and Ohio showed rates of individuals released from mental institutions becoming homeless within six months as high as twenty-seven and thirty-six percent. Treatment Advoc. Ctr., supra note 8. ↩︎
  24. CDC, Coronavirus Disease 2019 (COVID-19): Interim Guidance for Homeless Service Providers to Plan and Respond to Coronavirus Disease 2019 (COVID-19) (updated Nov. 3, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/homeless-shelters/plan-prepare-respond.html. ↩︎
  25. See Sarah Holder & Kristin Capps, No Easy Fixes as COVID-19 Hits Homeless Shelters, CityLab (Apr. 17, 2020), https://www.citylab.com/equity/2020/04/homeless-shelter-coronavirus-testing-hotel-rooms-healthcare/610000/. ↩︎
  26. See Christina Canales, Note, Prisons: The New Mental Health System, 44 Conn. L. Rev. 1725, 1732 (July 2012). ↩︎
  27. Id. ↩︎
  28. Id. at 1732–33. This push back has been named the “Not in My Backyard Phenomenon,” and an individual who opposes the construction these facilities, or other developments that may be considered a nuisance such as nuclear plants, in their area may be referred to as a “Nimby.” Peter D. Kinder, Not in My Backyard Phenomenon, Britannica, https://www.britannica.com/topic/Not-in-My-Backyard-Phenomenon. ↩︎
  29. 527 U.S. 581, 597 (1999). ↩︎
  30. Id. at 593. ↩︎
  31. Id. at 607. ↩︎
  32. Id. at 605. ↩︎
  33. How Many People with Serious Mental Illness are Homeless?, Treatment Advoc. Ctr. (July 25, 2014), https://www.treatmentadvocacycenter.org/fixing-the-system/features-and-news/2596-how-many-people-with-serious-mental-illness-are-homeless. ↩︎
  34. See Sasha Abramsky & Jamie Fellner, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness, Hum. Rts. Watch 49 (2003), https://www.hrw.org/sites/default/files/reports/usa1003.pdf. ↩︎
  35. Id. ↩︎
  36. Id. ↩︎
  37. See e.g., Joan Heath, Georgia Department of Corrections Coronavirus (COVID-19) Response, Ga. Dep’t of Corr. (Mar. 16, 2020), http://www.dcor.state.ga.us/NewsRoom/PressReleases/georgia-department-corrections-coronavirus-covid-19-response. Notably, the Georgia Department of Corrections initially did not place an end date on the suspension of volunteer visits to state prisons but did so for visitations. Id. The suspension of visitations has been extended through February 19, 2021, subject to changing public health guidance. Id. ↩︎
  38. Micheal L. Perlin, Deborah A. Dorfman, & Naomi M. Weinstein, “On Desolation Row”: The Blurring of Borders Between Civil and Criminal Mental Disability Law, and What It Means to All of Us, 24 Tex. J. on C.L. & C.R. 59, 103 (2018). ↩︎
  39. Id. (quoting Naomi M. Weinstein & Michael L. Perlin, “Who’s Pretending to Care for Him?” How the Endless Jail-to-Hospital-to-Street-Repeat Cycle Deprives Persons with Mental Disabilities the Right to Continuity of Care, 8 Wake Forest J. L. & Pol’y 455, 481–82 (2018)). ↩︎
  40. Id. (quoting Bruce J. Winick, A Therapeutic Jurisprudence Model for Civil Commitment, in Involuntary Detention & Therapeutic Jurisprudence: International Perspective on Civil Commitment 23, 26 (Kate Diesfield & Ian Freckelton eds., 2003)). ↩︎
  41. Id. (quoting Rebecca S. Broches, Creating Continuity: Improving the Quality of Mental Health Care Provided to Justice-Involved New Yorkers, 21 Geo. J. on Poverty L. & Pol’y 91, 100 (2013)) (internal quotation marks omitted). ↩︎
  42. See Brie Williams et al., Correctional Facilities in the Shadow of COVID-19: Unique Challenges and Proposed Solutions, HealthAffairs (Mar. 26, 2020), https://www.healthaffairs.org/do/10.1377/hblog20200324.784502/full/. ↩︎
  43. Stacie A. Deslich, Timothy Thistlethwaite, & Alberto Coustasse, Telepsychiatry in Correctional Facilities: Using Technology to Improve Access and Decrease Costs of Mental Health Care in Underserved Populations, 17 Permanente J. 80, 84 (2013). ↩︎
  44. Id. at 83. ↩︎
  45. Id. ↩︎
  46. See John Hendel, Federal Prisons Make Inmate Calling, Video Visits Free During Pandemic, Politico (Apr. 14, 2020), https://www.politico.com/news/2020/04/14/federal-prisons-make-inmate-calling-free-186383. ↩︎
  47. See Jimmy Jenkins, Prisons and Jails Change Policy to Address Coronavirus Threat Behind Bars, NPR (Mar. 23, 2020), https://www.npr.org/2020/03/23/818581064/prisons-and-jails-change-policies-to-address-coronavirus-threat-behind-bars. In a small step towards progress, prison officials in Minnesota and Arizona have at least waived copays for medical visits and fees for personal hygiene supplies. Id. ↩︎
  48. Updates for Inmate Families, Frequently Asked Questions: What is the availability of phone calls?, Minn. Dep’t of Corr., https://mn.gov/doc/about/covid-19-updates/updates-for-inmate-families/. ↩︎
  49. Id. ↩︎
  50. Bernadette Rabuy & Daniel Kopf, Separation by Bars and Miles: Visitation in State Prisons, Prison Pol’y Inst. (Oct. 20, 2015), https://www.prisonpolicy.org/reports/prisonvisits.html. ↩︎