Alan R. Felthous, MD

The recent 2014 Joint Report of the Treatment Advocacy Center and the National Sheriffs’ Association

 could have been a most useful and timely report on 

 critical issue in correctional mental health today: the woefully inadequate access to appropriate levels of mental health services for the enormous and growing number of seriously mentally ill persons in jails and prisons. Instead, it is a tendentious monograph that will add to the worsening root of the problem, precipitously eliminating hospital treatment for severely mentally ill inmates.

[[{"type":"media","view_mode":"media_crop","fid":"26961","attributes":{"alt":"national survey of treatment practices for mentally ill inmates","class":"media-image media-image-right","height":"142","id":"media_crop_4836067846517","media_crop_h":"0","media_crop_image_style":"-1","media_crop_instance":"2576","media_crop_rotate":"0","media_crop_scale_h":"0","media_crop_scale_w":"0","media_crop_w":"0","media_crop_x":"0","media_crop_y":"0","style":"float: right;","title":" ","typeof":"foaf:Image","width":"174"}}]]The purpose of the study was to conduct the first national survey of treatment practices for mentally ill persons in prisons and jails, with a focus on treatment-refusing, seriously mentally ill inmates. Among the sheriffs and administrators interviewed, there was consensus on 3 points:

• The number of mentally ill in jails and prisons continues to climb, and the severity of their mental disorders is worsening

• Jail and prison officers “feel compelled to provide the hospital-level care that these inmates need”

• “The root cause of the problem is the continuing closure of state psychiatric hospitals and the failure of mental health officials to provide appropriate aftercare for the released”

The implication is that the reduction of hospital and other mental health services for civilians has led to an increasing number of seriously mentally ill persons who end up behind bars. This public policy, which led to trans-institutionalization, is a big part of the root of the problem-the tap-root, as it were.

Unfortunately, there was no consensus about the increasing withdrawal of hospital services from seriously mentally ill inmates. The withdrawal of hospital mental health services from mentally ill inmates should have been concerning. Sheriffs and jail administrators may be able to do little about the reduction of services that leads to more mentally disordered persons being incarcerated. However, they can be concerned about and attempt to address the other side of this issue: the withdrawal of hospital services for individuals for whose care they are responsible. Because of the way it was designed and carried out as well as the way the data were organized and presented, rather than addressing the root cause, the survey promoted the practice/policy of introducing and supporting enforced medication in correctional settings and ignored the possibility of making hospital care available to inmates in need of this level of care.

This bias toward providing involuntary medication in jails and prisons rather than addressing the root cause is evident not only in the opening paragraph of the Joint Report, but also in the survey itself and in the concluding recommendations. The survey summary for each of a num-ber of states begins with the com-ment, “State law does not prohibit [the state’s] county jails from administering medication involuntarily on a nonemergency basis. Therefore, county jails could use a 

 administrative proceeding to authorize involuntary medication for an inmate who is suffering from a mental disorder, is gravely disabled, or poses a likelihood of serious harm to self or others.”

 The paragraph concludes with the observation that the mechanisms in place for hospitalization or enforced medication are not used much, if at all, or are not working.

Of the 6 recommendations to address the treatment needs of the seriously mentally ill in jails and prisons, none supports an increase in the number of available beds for seriously mentally ill patients in need of hospital-level treatment. Neither is a recommendation made for measures to expedite hospital transfer. Hospitalization of inmates with mental disorders was entirely overlooked as a potential solution to the unavailability of hospital care.

The first recommendation, foreseen in the Joint Report’s introductory paragraph as well as in how the data were obtained and presented, was: “Provide appropriate treatment for prison and jail inmates with serious mental illness.” Even within the discussion of this recommendation, hospitalization is not mentioned for the seriously and acutely mentally ill, who, were they not incarcerated, would most certainly be hospitalized. Instead, legislation is proposed to allow involuntary medication, and a “model law” patterned after the 

 decision has been generalized to correctional settings, including jails.

 The policy that met constitutional approval in 

 was a policy specific for the Special Offender Center, the purpose of which was “to diagnose and treat convicted felons with serious mental disorders,”

 also referred to as a hospital, not the rest of the Washington State Prison System and not for non-medical correctional facilities. No mention of these distinctions was made in the Joint Report. Although the Joint Report has no legal authority whatsoever, it will now most certainly be relied on to support and expand the practice of involuntary medication in jail and prison facilities, thereby further reducing the perceived need for and use of mental hospitalization.

A more fundamental and basic harm than any stigma with or without hospitalization would be the “legitimization” and institutionalization of enforcing medication in a setting whose primary purpose is security and/or punishment, not primacy of the patient, one of several medical ethical tenets that pertain to this issue.

 By denying hospitalization to a class of individuals-mentally ill and disabled inmates-that is available to all other individuals with mental illness of the same nature and severity, the detention/correctional system is discriminating based on a status that has nothing to do with need. That such discrimination might be due in part to the more obvious stigma that attaches to indictment or conviction of a criminal offense is secondary in importance to the inferior treatment that is provided certain inmates because of this status.

The Joint Report advocates for a “molecular minimalist” approach to ensure that inmates who refuse medication are treated. As important as antipsychotic medication is in such cases-and it is indeed critically important-this seems to be the only treatment considered. Obviously, a well-staffed and well-programmed hospital offers much more in the way of treatment modalities than medication alone. By advocating only enforced medication within nonmedical correctional facilities, the Joint Report encourages the practice of this type of treatment without other elements that distinguish hospitals from nonmedical correctional facilities. Following this minimalist approach, many severely disturbed inmates will no doubt benefit from receiving the medication that they so desperately need, but they will not have the full array of safety measures and treatment modalities available with hospitalization.

To correctional officers and clinicians, the withdrawal of intensive mental health treatment for severely disturbed inmates can seem inexorable, its restoration impossibly elusive. With hopeless outlook, the urgency of hospitalization yields to the urgency of medication regardless of where it is administered. The failures to be addressed become redefined, no longer as obstacles to hospitalization but as obstacles to involuntary medication alone.

As the practice of involuntary medication in non-medical correctional facilities becomes more widely institutionalized, any political or clinical motivation for restoring hospitalization will continue to fade. Policymakers, correctional administrators, and correctional mental health providers will do what comes naturally: they will justify their actions and, consequently, the newly devolving status quo in correctional health care.

Having bemoaned the transformation of jails and prisons into America’s “new asylums,” the Joint Report strongly supports a practice that will foster the expansion of this devolution into the future with the “molecular minimalist” approach of involuntary medication outside of a hospital with its panoply of programs and treatments. Jails and prisons will continue to devolve and stagnate as warehouses for the mentally ill that provide little more than medication for the most severely, acutely psychotically disturbed inmates.

Dr Felthous is Professor and Director in the forensic psychiatry division, department of neurology and psychiatry at the Saint Louis University School of Medicine in Saint Louis. He reports no conflicts of interest concerning the subject matter of this article.

 Torrey EF, Zdanowicz MT, Kennard AD, et al. The treatment of persons with mental illness in prisons and jails: a state survey. A Joint Report of the Treatment Advocacy Center and the National Sheriffs’ Association; April 8, 2014. http://tacreports.org/storage/documents/treatment-behind-bars/treatment-behind-bars.pdf. Accessed July 16, 2014.

 Felthous AR. The Ninth Circuit’s Loughner decision neglected medically appropriate treatment. 

. Chicago: American Medical Association Press; 2002.

Articles

The recent 2014 Joint Report of the Treatment Advocacy Center and the National Sheriffs’ Association could have been a most useful and timely report on the woefully inadequate access to appropriate levels of mental health services for incarcerated seriously mentally ill persons. This author believes the report will only make the problem worse. 

The Treatment of Persons With Mental Illness in Prisons and Jails: An Untimely Report

But what about psychopathic disorders? Persons with these disorders are usually considered untreatable and cannot be involuntarily admitted to a hospital. Yet psychopathy is the disorder that is most predictive of a person's future aggression and foreseeable harm to others.

Antisocial personality disorder is one of the few mental disorders for which aggressive behavior is a diagnostic criterion.

 "Irritability and aggressiveness, as indicated by repeated physical fights or assaults," is 1 of 7 elective criteria of which 3 are required to establish the diagnosis.

 A pattern of personal violence is widely recognized as a major predictor of future assaults. Because of its severe character pathology, psychopathy is, although limited, a better predictor of future violence than are other major mental illnesses.

 High scores on the Hare Psychopathy Checklist (PCL) and on the Hare Psychopathy Checklist-Revised (PCL-R) have been shown to be strong predictors of criminal and especially violent recidivism among prisoners.

High scores on the short, screening version of the checklist (PCL-SV) are predictive of postdischarge violence among psychiatric patients

 of posthospital discharge patients, a high score on the PCL-SV was a strong predictor of postdischarge violence-in fact, it was the strongest predictor of all variables studied. Even so, with a prevalence of 35.7%, more than half of patients with elevated psychopathy had no registered incidents of violence within 6 months following discharge. A history of serious child abuse and alcohol or drug abuse, together with elevated psychopathy and absence of suicidal behavior as the reason for hospital admission, raises the prevalence of violence to 58.5%.

In the 1970s, young age and male sex were considered more predictive of violence than was having any clinical condition. Because of their statistical strength-even if they were not strong predictors in themselves-such actuarial correlates were considered to be on firmer scientific ground than clinical factors and research on prediction headed toward actuarial determinations, as exemplified by the MacArthur study.

However, the finding that psychopathy predicted future violence was an exciting revelation. Psychopathy carries not only predictive validity in assessing risk for future violence but also has construct validity. The PCL, in particular, identifies a disorder, condition, or dimension. Decisions need not be restricted to dichotomous options to protect the public. If something could be done that is appropriate to the condition (treatment would be ideal) then a clinical intervention offering hope for the afflicted person was conceivable and more consistent with clinicians' roles as helpers rather than as guardians of the public. Thus, research suggesting that treatment did not improve the behavior of psychopaths, and may in fact make it worse, was all the more disappointing.

 Obviously, society will not imprison all young males for its protection. The association between psychopathy and violence suggests a smaller, more manageable group with whom to be concerned; however, preventive detention without other beneficial goals is at the very least morally controversial.

Contrary opinion maintains that for public safety, if not for treatment (especially if the person has already victimized others), some preventive detention may be justified whether by imprisonment or hospitalization. Perhaps it is because of such a view that defendants have been acquitted based on insanity when the primary disorder is a personality disorder, despite insanity law to the contrary.

 Specific laws such as sexually violent predictor statutes allow civil commitment when the sole disorder is a personality disorder. We shall not delve into the debate over the appropriateness of civil or criminal preventive detention here, except to point out that views and laws pertaining to involuntary hospitalization for personality disorders are not as simple and settled as some commentators might suggest.

Treatment considerations with co-occurring disorders

Most important and often overlooked is that antisocial personality disorder or psychopathy in clinical settings often do not occur in the pure state. Commentaries typically discuss psychopathic disorders as if they existed in the absence of other more or less seriously disabling conditions. For example, conditions such as substance abuse and impulsive aggression may be conceptualized as either dimensions of the basic psychopathic disturbance or as distinct conditions that frequently co-occur with psychopathic disorders.

In any event, especially if the patient cooperates with treatment efforts, such conditions should not be overlooked, because a favorable response to therapeutic interventions can improve the patient's overall social functioning and decrease the risk of recidivism, even while other psychopathic traits persist. Co-occurring conditions in psychopathic criminal offenders and civil patients should not be overlooked. Whether these persons are on probation, parole, or incarcerated, failure to address co-occurring conditions therapeutically only strengthens the incorrigibility of the core psychopathic disturbance.

Persons who are antisocial and psychopathic can also have a major mental illness such as schizophrenia. If they manifest extreme aggression and difficult to manage behaviors, they may require intensive treatment in a maximum security hospital. Even aggression that is the result of psychosis can have impulsive features, such as in psychotic agitation and premeditated qualities when the act is planned but delusionally driven. Appropriate treatment of the psychosis with antipsychotic medication often serves to control aggression and other psychotic symptoms. Selected mood stabilizers or anticonvulsants can be added when antipsychotic medication alone does not control aggression.

Once the overt psychosis is controlled, aggression may or may not dissipate. For some inpatients, aggression associated with psychopathic disturbance may persist. In addition to maintenance antipsychotic pharmacotherapy, an anticonvulsant or mood stabilizer may further improve aggression that is predominately impulsive. In contrast, organized, premeditated antisocial aggression will not be altered with pharmacotherapy. Depending on the severity of the patient's core psychopathy, psychosocial rehabilitation and cognitive or behavioral therapy may be helpful with continuous treatment following discharge.

Treatment of the inpatient who is psychopathic must involve fair, reasonable, and consistent limit setting, and the patient's attempts at manipulation must be confronted and dealt with therapeutically. At first glance, this approach may seem at odds with contemporary approaches to inpatient hospitalization, which emphasize respect for the patient's wishes and de-emphasize the use of controlling and coercive measures, constant one-to-one observation, seclusion, and restraint. Indeed, every reasonable effort must be made to avoid provoking potentially aggressive patients and to use the least intrusive and restrictive measures to ensure safety. Of course, even in patients with major mental illnesses who are sufficiently disturbed and require inpatient care, titration of the ratio of individual freedom to support and control should be ongoing in their recovery process.

When the guiding principles of inpatient hospitalization address the needs of those with major mental illnesses but not those of patients who are psychopathic, the latter may need to be transferred, discharged, or prosecuted in order to maintain the integrity of noncontrolling programming. Taken to an extreme, the scapegoating and exiling through the prosecution of every patient who does not conform constitutes an abusive practice. If used judiciously, prosecution actually respects a patient's autonomy by holding the person accountable for his conduct. One must remain ever mindful, however, that when successful, prosecution is a far more controlling, coercive, and punishing measure than any of the temporary protective measures customarily used in hospital treatment.

Arguments exist for and against the continued hospitalization of a patient whose symptoms of serious mental illness have been controlled but who remains dangerous to others as a result of psychopathy. Again, the greater the risk of future violence, the greater the justification for preventive detention, if one accepts the controversial view that preventive detention for public protection is a worthy social policy. But, the greater the psychopathy, the poorer the prognosis with hospital treatment and, therefore, the weaker the treatment becomes as a justification for hospitalization.

The issue is not simply a debate between the conflicting justifications of public protection and effective treatment. Regardless of whether a patient is psychopathically disturbed, traditional justification for discharge is that the patient has achieved optimal benefits from hospitalization. A minimal justification, favoring cost containment, is that the crisis or acute condition that precipitated hospitalization has subsided to the extent that the patient no longer presents a significant risk of harming himself or others in the near future. A compromising justification between these options is substantial reduction in the probability that rehospitalization will be necessary soon.

Many would advocate a laissez-faire approach to persons with psychopathic disorders. If they do not appear to be suffering and motivated, attempts to treat these patients might be wasted efforts. Civil commitment is inappropriate because the disorder does not cognitively disturb their ability to consent. In 

 a psychopathically disordered insanity acquittee had to be released from involuntary hospitalization because, even if dangerous, he lacked a mental illness for which continued hospitalization would be justified. If, however, a person with psychopathy violates criminal law, he is subject to punishment, including imprisonment, just as any other person. Incarceration to punish the person and protect society is preferred over treatment and civil commitment. Criminal intervention is reactive, not proactive, and retributive justice is blind to whether the person has a personality disorder.

Capacity to consent and to benefit from treatment

Involuntary hospital commitment is most easily justified when the unwilling patient has a mental disorder that deprives him or her of the capacity to consent, is amenable to psychiatric treatment, and creates a serious risk of harm to himself or others. Psychopathy alone statistically elevates the risk of harm to others but does not result in incapacity to consent and is not generally considered responsive to standard psychiatric treatments.

 the US Supreme Court noted that Burch was voluntarily admitted to a hospital and no attempt was made to ascertain whether he was competent to sign the voluntary admission forms. This and the resultant deprivation of liberty was sufficient to state a claim in Federal Court. Of course, those with psychopathy alone should be competent to voluntarily agree to hospitalization. The US Supreme Court's 

 notwithstanding, many patients have historically been and many continue to be hospitalized voluntarily and involuntarily without having been found legally incompetent to make treatment decisions. Those who are hospitalized involuntarily show a wide range of decisional capabilities.

Most committed patients eventually benefit from treatment sufficiently to qualify for hospital discharge. Depending on jurisdictional law, some persons with developmental disabilities and sexual offenders are subject to long confinement with little to suggest the possibility of recovery as a result of treatment. Historically, persons with mental illnesses were sometimes committed for life, before the advent of effective psychotropic medicine. Whether the patient is likely to respond to inpatient treatment is an important consideration for civil commitment, but amenability to treatment per se is not necessarily dispositive.

To address the risk of personal violence or harm to others, 3 qualities must be assessed: the seriousness of the risk, its likelihood, and its proximity in time.

 Even if unlikely to occur immediately, a risk that appears serious and near-certain must be considered grave. If violence is about to occur, its seriousness need not be extremely catastrophic to justify intervention.

When the risk is secondary to psychotic agitation associated with schizophrenia, the application of these 3 considerations: treatment decision capacity, treatment amenability, and risk-is straightforward for purposes of addressing the overall appropriateness and specific jurisdictional legal criteria for involuntary hospitalization. For the remitting patient with schizophrenia who is also psychopathic, the matter becomes more complicated. If he is no longer considered high risk, the patient may not qualify for involuntary hospitalization. However, if the patient with schizophrenia is also psychopathic, psychopathy cannot be overlooked because psychopathy may increase the risk of present and future aggression more than schizophrenia alone.

 suggest that many index crimes, even when perpetrated by patients with schizophrenia, are actually driven by aspects of their disordered personality. Any significant aggression during active psychosis can reasonably be attributed to the psychosis for purposes of justifying civil commitment, even if the exact causal mechanism cannot be demonstrated and psychopathy may have contributed. Once the psychotic and other schizophrenic symptoms have dissipated, the risk of aggression due to psychopathy in the distant future would not justify continued commitment under the standard civil commitment law for mental illness.

A gray area is the impulsive aggression that can persist after psychotic symptoms have subsided. Conceptually, such aggression can represent incomplete control of schizophrenic symptoms, such as persistent impairment of frontal lobe functions, the impulsive aggression seen in psychopathy, or a third comorbidity such as intermittent explosive disorder. Regardless, it can be difficult to sort out the exact origin in the patient with both schizophrenia and psychopathy. Because the aggression is out of the patient's control and can reasonably be expected to respond to appropriate treatment, we recommend erring in the direction of hospital treatment, supported by involuntary court order if necessary.

Hospital discharge planning must take into account environmental factors that can interact with psychopathic features with resultant recurrence of aggressive and antisocial behaviors and psychotic decompensation. Such risk-enhancing factors include availability of weapons, street drugs, and adversely influencing people such as members of criminal gangs. To be optimally effective, any therapy or programming begun in the hospital should be continued in the community following discharge.

Much remains to be learned through basic and clinical research about developing strategies to help those with psychopathic disorders lead more constructive and meaningful lives, or at least to minimize the risk of harming others and inviting harm to themselves. Paradoxically, persons who have psychopathic disorders may well be more "predictably" aggressive than those with other disorders, yet their reputation for untreatability and uncommitability is not without foundation. Nonetheless, the assessment of psychopathy can be useful in establishing a total treatment context for addressing common co-occurring conditions such as substance abuse and impulsive aggression, as well as major mental illness such as schizophrenia.

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The clinical management of patients with psychopathy and other psychopathic disorders presents a vexing challenge for mental health professionals. The issues of hospital treatment and civil commitment can be especially confusing.

Alan R. Felthous, MD

Articles

The Treatment of Persons With Mental Illness in Prisons and Jails: An Untimely Report

The Paradox of Psychopathy