More structure, clear guidelines needed to help the mentally ill, says a report from the University of Virginia
RICHMOND-A MOT order saved Eric Smith’s life. On a good day, Smith said, psychiatrists diagnose him with bipolar disorder. On a bad day, they say he’s got schizoaffective disorder. But he always had it under control, he said.
Then eventually, the illness began to take over.
Smith was first hospitalized in his mid-20s for mental illness, around 2009. He was hospitalized two more times after that. His third and final discharge came in 2012. But that final discharge came with a catch – he now had a mandatory outpatient treatment (MOT) order.
That MOT order changed everything.
“Without mandatory outpatient treatment, I would at best be living under a bridge somewhere, consumed by mental illness,” Smith said. “But perhaps more likely than that, I would probably be dead. The treatment team enabled me to regain my health and start a new life.”
Smith sat before the Virginia General Assembly’s Joint Subcommittee on Mental Health Services in the 21st Century Dec.10, telling his success story. During his testimonial, he even got emotional about how MOT helped him. He wanted it to help anyone else in need of emergency services.
“I’m speaking to you from Texas, but not intending to speak as a Texan who knows what is best for the people of Virginia,” Smith said. “Rather, I’m speaking as someone of the severe mental illness population who knows firsthand that MOT saved my life.”
How Mandatory Outpatient Therapy Currently Works
In Virginia, there are three different ways that a person can receive a mandatory outpatient therapy order. First, there’s a Direct MOT. A special justice orders Direct MOTs in place of a person getting committed.
The other two options occur after a patient is committed to a mental health facility. A Pre-Authorized Step-Down happens immediately when a person is committed. A commitment hearing determines if a person is recommended for mandatory outpatient therapy. When a determination is made for discharge, the patient’s physician makes the final decision.
Alternatively, a New Hearing Step-Down MOT happens after a patient is committed to in-patient treatment. At any point, a physician can petition for the patient to be discharged with a mandatory outpatient therapy order.
After a MOT is ordered, a community services board (CSB) takes over. The CSB is responsible for creating the treatment plan and making sure that people with MOT orders are compliant.
The subcommittee work group recommended that all three types of MOT orders remain. However, they did recommend some dramatic changes in the way that they are determined and enforced. The current statute is obscure at best, the group said. It contains vague language that makes it difficult for all parties involved to understand their roles and their rights.
Getting Everyone on the Same Page
The work group’s main goal was to standardize the criteria for MOT eligibility. When looking at a person’s mental-health history, the group recommended that the 36-month “look back” period should be kept, but that incarceration and institutionalization history be removed.
Those histories are not good indicators of how a person behaves in their community, said Lisa Dailey, director of advocacy at the Treatment Advocacy Center in Arlington.
Daniel Bice, an attorney based in Lynchburg and a member of the work group, said that he felt that physicians shouldn’t be involved in the judicial decision-making process at all. However, Bice said he was only “one voice” on the work group. He respected the opinion of the others to include physician determination in other parts of the MOT process.
The largest standardization change recommended by the group was to ensure that MOTs were only granted to people who could follow through with it. Currently, the statute only requires that the locality have resources available for a person to follow their MOT order, not that the person has the actual ability to use those resources.
“A MOT is not appropriate for someone who can’t use it,” said Michael Razak, a therapist for the City of Alexandria and work group member.
More Clear Oversight
One of the largest issues the work group had with the current MOT statute is its guidance for community service boards, which oversee MOT cases. According to the group, after a CSB receives a MOT case, they do little to oversee that the person fulfills the MOT order.
“It’s not really clear what the CSB has to do other than monitor and report non-compliance,” Razak said. “What does monitor mean? On the flip-side, if you are a patient or individual receiving MOT services, how can the court confirm that CSB is upholding its side of the order? Where is the accountability on the CSB side?”
Part of that is because of the vagueness of the statute wording. To fix this, the work group recommended more clear language to provide better oversight of CSB and how CSB oversees its cases.
The first step was to change the term “non-compliance” to “non-adherence” for when a person does not follow their MOT order. Razak said that non-compliance implied severe consequences for when a person breaks their MOT order and also does not provide enough flexibility for interpretation. A person can be mostly following their order, but if they forget an appointment or don’t take their medication, does that mean they are no longer compliant?
By switching to the term “non-adherence,” violations of the order can be dealt with on a more case-by-case basis. This would better incentivize people to follow their orders and seek resources if they need it.
“Adherence gives the idea of choice,” Razak said. “You can blend the fact that it’s a court order but not a big beast with scary teeth.”
Petitioning The Court
The next step was to expand who was allowed to petition for MOT hearings. Currently, there are two types of MOT hearings: a status hearing and a review hearing. Status hearings are focused on short term examinations of a person’s progress under MOT.
Currently, the only party that can petition for either of these hearings is the CSB.
“That carries problems in and of itself,” Bice said. “We have more than two parties in any one of these hearings, yet statutory framework is only to allow the monitoring party the ability to petition for whatever relief it seeks.”
Instead, the work group recommended to the subcommittee that it should be broadened to include the person under the MOT order, their healthcare provider, the original petitioner for the MOT or the healthcare agent identified in the person’s advance directive.
The work group’s recommendations are designed to improve the MOT system to a point where hospitalization rates drop for mental health patients statewide. Currently, only 11 out of 125 general district courts distributed 90% of MOTs. The work group wants all general district courts to be able to use MOTs as an alternative to hospitalization. Members believe that providing more clear guidelines will help encourage their use.
Reducing hospitalizations is better for both practical and financial reasons. On the practical end, there is still the COVID-19 pandemic. Healthy people that get committed increase their chances of catching the disease. Beds are also needed to treat pandemic patients. Reducing the amount of beds being used by mental-health patients frees up more beds for them, said subcommittee chair Del. Patrick A. Hope (D-Arlington).
Financially, reducing hospitalizations can save Virginia money. Kristi Wright, a work group member and director of the Department of Legislative and Public Relations for Virginia’s judicial system, said that while there may be additional costs for more court hearings, it could also be offset by reduced hospitalization costs.
Is It Worth the Cost?
That type of quantitative data to prove it has not yet been obtained by the work group and could be difficult to show.
“Through the mental health commitment fund, special justices are paid,” Wright said. “If there are an increase number of hearings there will be an increased cost to pay for that. But I want it understood when we submit a fiscal impact that we’re not hearing the other side of it.”
That fiscal impact that can snarl any statutory changes in the 2021 legislative session. Hope noted that similar recommendations had been made in the past, but got stuck in Appropriations because of potential costs versus unknown offsets.
During public comment, the only commenter asked about the General Assembly’s financial motivations for mental health legislation.
Sophia McNicholas, a Virginia resident, asked the subcommittee “why did the General Assembly allocate $5.9 million to expanding the Virginia Center for Behavioral Rehabilitation, which won’t actually increase the number of available psychiatric beds, instead of funding MOT programs around the state?”
Hope redirected her question to the rest of the committee members, who also did not provide additional context to her question or an answer.
Julia Raimondi is a freelance reporter for Dogwood. You can reach her at [email protected].
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