Politics & Policy

Failure in Tucson

A bloody look at rights, responsibilities, and brokenness.

Should there be involuntary-commitment laws for the mentally ill? National Review Online asked some mental-health and other health-policy experts.

David Gratzer

Robin is a patient I’ve seen many times before. He suffers from severe mental illness. Despite my efforts to help him, his treatment pattern stays relatively the same: He gets ill because of treatment refusal, is admitted to hospital where he is medicated against his will, then leaves, and, soon after, goes off his meds again, so that the frustrating and expensive pattern of psychosis and institutional care repeats itself.

With Robin, there is modestly good news for society: Like the vast majority of schizophrenic patients, he doesn’t have a violent bone in his body.

But some do. About 1 percent of the seriously mentally ill are violent. They account for about half the rampage murders in the United States.

It’s difficult to tell exactly what happened in Arizona, but this much is already clear: Jared Lee Loughner was under the influence of a chemical imbalance, plunging him into a distorted world of delusions and psychosis. Despite the early media portrayals and Democratic whispers, this had nothing to do with talk radio or tea parties, and everything to do with an illness.

Signs were missed; action wasn’t taken. Now, like tens of thousands of other mentally ill people, he seems destined to enter the prison system. (And, for the record, even that isn’t a prescription for care: A University of Michigan study recently found that two thirds of prisoners with severe mental illness receive no treatment.)

Before the 1960s, psychiatry was largely unrestricted by patient rights. In the past four decades, the pendulum has swung to the other extreme. People like my patient Robin “choose” to spend their years in and out of hospitals. Sometimes the results are catastrophic.

It’s true that many states have adopted laws that allow society to demand treatment of certain high-risk outpatients. California has such a law, inspired a decade ago when — ten years ago almost to the week of the Arizona tragedy — college student Laura Wilcox was shot dead by a paranoid man who had refused treatment for his mental illness. Yet, because of lobbying and lawsuits by patients and civil libertarians — some of which has been done with taxpayer dollars — these laws are often weak or not enforced. Consider: A majority of counties in California don’t enforce Laura’s Law.

Arizona is a tragedy. But perhaps it will inspire us to reconsider the rights of the severely mentally ill, and our responsibility to them.

— Dr. David Gratzer, a physician, is a senior fellow at the Manhattan Institute.

D. J. Jaffe

Pundits and politicians are busy blaming Jared Loughner’s parents for not preventing him from shooting Gabrielle Giffords. It’s a common approach: blame the parents.

But as a relative of someone with mental illness, I know that under current law, families of the mentally ill are often powerless to do anything other than say, “Go to a doctor,” until after their children become “danger to self or others.” You can call the mental-health authorities or police all you want, but until your loved one is “danger to self or others,” in the name of “civil liberties” you’re powerless. That’s ludicrous. Laws should prevent violence, not enable it. Most individuals with mental illness are not violent, but there is a readily identifiable subset that is.

The following proposals are not knee-jerk responses to a single act of violence. Advocates for the mentally ill have been calling for reform for over 25 years, but absent an act of violence, no one listens. There are two things government should do now:

First, focus existing mental-health resources on the most seriously mentally ill rather than social programs for the worried-well. Don’t increase the mental-health budget, just send people with serious mental illness to the front of the line, rather than the back.

Second, reform involuntary-treatment laws:

  • When the “dangerousness standard” is used, it should be interpreted more broadly than “imminently” and/or “probably” dangerous. Running around with a knife ought to qualify. You shouldn’t have to use it first.


  • Supplement the “dangerousness” standard with broader, flexible standards that would allow for involuntary commitment when an individual is:

    • “Gravely disabled” (substantially unable, except for reasons of indigence, to provide for any of his basic needs, such as food, clothing, shelter, health, or safety), or

    • Likely to “substantially deteriorate” if not provided with treatment, or

    • “Lacks capacity”(unable to fully understand or lacks judgment to make an informed decision).

    As a compassionate and humane society we shouldn’t require these people to wallow in their delusions, and wait for them to become dangerous before giving treatment.

  • Laws should allow for consideration of past history of the patient, since past history is the most reliable way to anticipate the future. If someone has a history of deteriorating off medications, the courts should know that.


  • The legal standard for initial 24-to-72-hour commitments should be “information and belief.” For commitments beyond then: “clear and convincing evidence.”


  • Patients should be given strong due-process protections, including the right to an attorney, and the commitment decision should be made by judicial or quasi-judicial bodies.


  • It is vitally important that every state adopt and use Assisted Outpatient Treatment (AOT). It is a cheaper, more humane substitute for involuntary inpatient commitment. AOT allows courts — with proper due-process protections — to order individuals with a past history of violence to stay in treatment as a condition of living in the community. The court order also “commits” the mental-health system to providing the treatment. Most mental-health providers turn the seriously mentally ill away so they can “serve” less symptomatic individuals. Under AOT, the court can order the mental-health provider to do more than write “discharged” when a seriously mentally ill individual fails to show up.

Research in New York shows that AOT works:

  • 47 percent fewer physically harmed others.

  • 55 percent fewer engaged in suicide attempts.

  • 74 percent fewer experienced homelessness.

  • 87 percent fewer experienced incarceration.

  • 83 percent fewer were arrested.

  • 77 percent fewer experienced psychiatric hospitalization.

  • Length of hospitalizations was reduced 56 percent.

While many states have these laws, most don’t use them: Arizona, California, and New York are three examples. In the New York Post this week, I wrote on what Congress can do about that.

Politicians and pundits should stop analyzing what Loughner wrote and start preventing other people from becoming just like him.

D. J. Jaffe is a former board member of the National Alliance on Mental Illness and the Treatment Advocacy Center, and a member of the leadership council of the National Alliance for Research on Schizophrenia and Depression (NARSAD). He blogs on serious mental illness for the Huffington Post and is launching mentalillnesspolicy.org to provide governments access to unbiased information on reforms needed to help people with serious mental illness.

Timothy A. Kelly

Another tragedy involving a person with mental illness and a gun has hit the front pages. As in the case of the last such nationally recognized tragedy, the Virginia Tech shootings, policymakers are wringing their hands and looking for ways to ensure public safety. Our tumultuous, polarizing times seem to facilitate an unhealthy combination of emotional instability and easy access to weaponry. What to do?

Some are calling for lowering the bar for involuntary commitment, so that persons with serious mental illness may more easily be hospitalized against their will if necessary. But that alone will change nothing. Even if the Virginia Tech and Tucson shooters had been forced into treatment, such treatment might not have changed the outcome. In my book, Healing the Broken Mind: Transforming America’s Failed Mental Health System, I point out that much of what occurs in psychiatric hospitals can be classified as “custodial care” — meaning that the patient is largely biding his or her time while, it is hoped, medication is taking effect. Not only that, but too often the treatment options that await the discharged patient in his home community are equally ineffective. What is needed is a complete reform — or transformation — of the mental-health service system into one that is results-oriented, innovative, adequately funded, and customer-focused. Such care must be home- and community-based, not hospital-based.

The main point of the Tucson tragedy is that America’s mental-health system is broken. What we need to do as a nation is roll up our sleeves and build something new in place of the status quo system of mental-health care. My book and others show the way to do that, but there is tremendous resistance to change on the part of those who benefit from the current system’s reimbursement structure.

I suggest in my book that it will take a “perfect storm” of visionary leadership, economic imperative, and public outcry for real change to occur. The recent economic tsunami has provided economic imperative, there are leaders who are willing to lead, and perhaps the Tucson shooter has sparked sufficient public outcry for policymakers to take action. If so, something good may yet come from this tragedy — the impetus to build a new mental-health system that will not only take potentially violent persons with mental illness off the street, but also provide effective treatment so that when they return, they will be able to join the ranks of peaceful and productive citizens.

— Timothy A. Kelly is author of Healing the Broken Mind: Transforming America’s Failed Mental Health System. He is currently Coordinator of Behavioral Health Services and Clinical Psychologist at ParkwayHealth Medical Centers and Shanghai Centre Medical Center in China.

Tevi Troy

Back in the 1970s, civil libertarians succeeded in ending the One Flew Over the Cuckoo’s Nest type of incarceration. In doing so, however, they pushed the pendulum too far in the other direction, to the point where our society now has trouble protecting itself from deranged individuals such as Jared Lee Loughner. Given this background, Bill Galston’s suggestion in The New Republic this week that we make it easier to incarcerate dangerous, mentally disturbed individuals is a worthy one, and one that has the potential to generate left-right cooperation, which is a rare commodity these days.

I agree with Bill on this issue, and his is not actually a new idea. I served in the White House during the Virginia Tech massacre — in the same role that Bill had under President Clinton — and worked with HHS Secretary Mike Leavitt on setting up a task force to look into the massacre and to come up with ways to prevent such events in the future. One of the conclusions of the task force’s report was that privacy concerns were trumping basic safety in terms of the ability of educators and social workers to identify unbalanced individuals who were a danger to themselves and others.

Other key findings in the report were that we need to make sure that criminal databases have accurate and complete information on individuals prohibited from possessing firearms; to improve awareness and communication about warning signs; and to get people with mental illness the services they need, be it on an inpatient or an outpatient basis. In addition, the report gave specific suggestions of actions that needed to take place at the federal and at the state level to implement the report’s conclusions. Unfortunately, the report’s recommendations received precious little attention at the time, and obviously have not yet been acted upon, but it is high time that Congress and the states start fixing this problem.

— Tevi Troy is a visiting senior fellow at the Hudson Institute. He is a former White House aide and a former deputy secretary of health and human services.

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