Post Newton: Re-Examining Mental Health Issues
Post Newton: Re-Examining Mental Health Issues

The December 2012 Newton massacre that killed 27 people started a national debate on gun control and mental health issues. The National Rifle Association (NRA) claims that mental illness, not the guns are responsible for the devastation. Nearly half a dozen states are considering revising mental health legislation, while a number of bills are being explored in Congress. Revisions include strengthening mental health services, lowering the threshold for involuntary commitment, and increasing requirements for reporting suspicious patients to authorities. As noted by the New York Times (2013), while understandable, these changes will not fix the myriad of problems facing the U.S. mental health system.

Mental health advocates do not yield the same amount of influence as the NRA, so these laws are likely to be passed. Critics note that studies show that only four percent of violent crimes are carried out by individuals with severe mental illness. While providing much needed funds for services for those with mental illness, advocates worry about the removal of their basic human rights (Goode and Healy, 2013). Furthermore, the bills under consideration do not deal with larger problems stemming from the de-institutionalization.

As U.S. policymakers tackle the issue of reforming mental health legislation, they need to take into account the bigger human rights issues at stake, the mental health challenges in the U.S., and the successes and failures of similar reformations worldwide.

Human Rights and Mental Health

Advocates worry about the loss of liberty, dignity, equality, and entitlement. Liberty refers to unwarranted detention. Without appropriate due process, individuals with mental illness can be confined against their will and without justification. Dignity refers to access to suitable care and treatment as well as access to suitable conditions while in detention. Equality refers to treatment by the community, while entitlement refers to access to health services (Gostin and Gable, 2008).

The issue of liberty, particularly involuntary treatment is hotly debated around the world. An article in the International Journal of Psychiatry (2009) outlines the challenges of involuntary treatment:

There is a balance to be achieved between, on the one hand, having the means to respond to the needs of, and/or risks posed by, a person considered to have a “mental disorder” who is not consenting to the proposed intervention, and, on the other, the risk that the use of such legislation poses with respect to a person’s rights to autonomy.

Countries decide to limit a person’s right to autonomy when they could harm themselves or others. Some argue that limiting self-autonomy should only take place if the person’s decision-making capacity is significantly impaired. Gostin and Gable (2008) argue that laws often wrongly assume that incompetency is synonymous with mental disability. Laws falsely assume that individuals are in constant state of incompetency and that incompetency applies to all areas of decision making. These false assumptions can lead to the loss of liberty.

There is an international body of human rights laws and conventions that pertain to individuals with mental disorders and a robust jurisprudence, particularly by the European Court of Human Rights. These laws and conventions build upon the Universal Declaration of Human Rights. Specific conventions include the United Nations’ Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (MI Principle) and the UN Convention on the Rights of Persons with Disabilities (CRPD) (Gostin and Gable, 2008).

The World Health Organization (WHO) provides guidelines to help countries and regional bodies to translate these principals into laws. The WHO Mental Health Policy and Service Guidance Package–Mental Health Legislation & Human Rights (2003) offers four principles for involuntary treatment:

1) Review process in place
2) Passage of a diagnostic threshold
3) Passage of a risk threshold
4) Passage of an incapacity threshold.

Similarly, the Council of Europe requires a review process, diagnostic threshold, fixed risk threshold and a therapeutic aim (Fistein, 2009).  The Council of Europe recommendations have been incorporated into the laws of many European countries. Europeans can bring violations directly to the European Court on Human Rights. Members of the Organization of American States (OAS) and Africans have their own treaties, charters, and courts to protect these rights and adjudicate violations, though their jurisprudence is not nearly as robust as Europe’s case law (Gostin and Gable, 2004).

Mental Health Legislation Models

About 78 percent of countries worldwide have mental health laws. More than half of the legislation was passed after 1990, though 16 percent were drafted before 1960.  Much of the initial legislation focused on safeguarding the public from dangerous patients and isolating them from the public, rather than focusing on human rights of those with mental illness (Latif and Malik, 2012).

Ireland’s Mental Health Act 2001 (fully implemented in 2006) put into place standards of care and treatment that can be monitored, inspected, and regulated. It established mental health tribunals to review involuntary admissions and made provisions for consent to treatment and administration of medicine to involuntary patients. It had no provision for compulsory community treatment and no provision for assessment of capacity. Most Irish stakeholders welcomed the act, though the lack of resources will make it difficult to implement, particularly in rural areas (Latif and Malik, 2012).

The United Kingdom passed the Mental Health Act of 2007, requiring compulsory treatment within the community. The act also includes the right to advocacy, age-appropriate services for children, and safeguards on the use of electro-convulsive therapy (Brindle, 2007). The UK Mental Health Alliance (2007) felt that the act does check the power of clinicians and it restricts patient rights and choices. The UK’s 2009 Mental Capacity Act, provides an additional level of safeguards. When a person refuses admission or treatment the Mental Capacity Act is used (instead of the Mental Health Act). No guidance though is given to physicians to determine whether a patient is formally objecting to treatment/admission. So, some fear its use will not be uniform (Cairns et. al 2010). UK mental health advocates continue their efforts to enact laws that ensure rights for those who cannot make decisions on their own.

Mental Health Legislation in the U.S.

The U.S. mental health system has a long and complicated history. During the 1950s and 1960s, the United States de-institutionalized hundreds of thousands of patients. A poorly funded community based system replaced the psychiatric institutions. The 1980s saw further service reductions to mentally ill as funding for community health clinics were reduced and other welfare services cut (Resnikoff, 2012). De-institutionalization was not the panacea originally envisioned. Jails and old age homes replaced psychiatric institutions. The lack of a robust community care system means many do not have access to medication or other treatment options (Gostin and Gable 2008).

After Newtown, many are calling for a re-examination of U.S. mental health laws. With more than 11 million adults with mental illness that do not have coverage, the U.S. mental health system needs many improvements. The primary pieces of federal legislation addressing mental health include:

  • The 1990 Americans with Disabilities Act (ADA), which includes mental illness. ADA prohibits workplace discrimination and requires reasonable accommodations, accessible transportation, and telecommunications service accommodations. (Mental Health, 2010)
  • The 2000 America’s Law Enforcement and Mental Health Project, which helps states and communities place offenders in treatment programs. It coordinates delivery of services, such as training of law enforcement and judicial personnel, funds outpatient and inpatient treatment that reduces sentences upon completion, and funds coordination of mental health treatment plans and social services (The Federal Mental Health Courts Program).
  • The 2008 Mental Health Parity and Addiction Equity Act, which required insurances to cover mental illness and substance use disorders in a manner that is no more restrictive than other medical and surgical procedures (Mental Health Parity and Addiction Equity Act)
  • The 2010 Affordable Care Act (ACA), which is the first piece of federal legislation that requires coverage of mental health services by health insurance plans (McDonough, 2012). ACA requires coverage of pre-existing conditions, extension of dependent coverage, and the removal of lifetime limits (New Health Coverage: Opportunities for People with Mental Illness).

While federal legislation addresses various components of mental health care, most mental health policies are determined and funded at the state and local level. There is no source that compiles a list of all the state policies, though the National Association on Mental Illness (NAMI) reports on the services (or lack thereof) provided by the states.  A 2009 NAMI report graded state mental health services on the following criteria: 1) health promotion and measurement; 2) financing and core treatment/recovery services; 3) consumer and family empowerment; and 4) community integration and social inclusion. The national average was a “D.”  States did not adequately address most of these areas, though they highlighted a few exemplars for each criterion. State mental health agencies cited funding as one of the key barriers to service delivery (Grading the States, 2009).

A 2011 NAMI Report State Mental Health Cuts: The Continuing Crisis documents budget cuts for children and adults living with serious mental illnesses. Since 2009, states cut more than $1.6 billion from the budgets for mental health services. These cuts translated into the loss of:  housing, assertive community treatment, access to psychiatric medications, and crisis services. In 2012, some states increased appropriation for mental health, though these increases did not mitigate the previous state losses and the reductions in federal Medicaid rates that accompanied the end of the temporary federal stimulus funding.

Moving forward

Some believe that implementing the Affordable Care Act will provide an opportunity to redesign the U.S. mental health system and make it much more integrated with community-based care (McDonough, 2012).  While additional funding will clearly make a difference to the broken mental health system, lowering the threshold for involuntary commitment and increasing requirements for reporting suspicious patients to authorities will not address the fundamental issues and may even result in fewer human rights for those with mental illness.

Before passing “improvements” to the mental health system, policymakers need to make sure that the changes will protect the rights of those with mental disorders will still protecting the public from harm. Studies show that community mental health services can be helpful when given enough funding. It seems that one of the best ways to help individuals with mental illness is to figure out how to use the Affordable Care Act as a jumping off point for improving community health services and making sure that those who need access to medication and treatment plans are able to receive them.

Stricter involuntary commitment laws may help getting violent mentally ill persons off the street. Increasing requirements for reporting suspicious patients to authorities may have the same effect, but at what cost?

Works Cited

Brindle, D. (2007, July 10). A new act, but mental health battles remain. The Guardian. Retrieved from: http://www.guardian.co.uk/society/2007/jul/11/mentalhealth.socialcare

China adopts mental health law to curb forced treatment (2012, October 26). Reuters. Retrieved from: http://www.reuters.com/article/2012/10/26/us-china-mentalhealth-idUSBRE89P0CS20121026

Cairns, R., Richardson, G., Hotopf, M. (2010). Deprivation of liberty: Mental Capacity Act safeguards versus the Mental Health Act. The Pyschiatrist, (34), 246-247. Retrieved from:  http://pb.rcpsych.org/content/34/6/246.full

Fistein, E.C., Holland, A.J., Clare, I.H.C., Gunn, M.J. (May 2009). A comparison of mental health legislation from diverse Commonwealth jurisdictions. International Journal of Psychiatry, 32(3), 147–155. Retrieved from: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2687511/

Goode, E. and Healy, J. (2013, January 31). Focus on mental health laws to curb violence Is unfair, some say. The New York Times. Retrieved from: http://www.nytimes.com/2013/02/01/us/focus-on-mental-health-laws-to-curb-violence-is-unfair-some-say.html?hpw

Gostin, L.O., Gable, L. (Winter/Spring 2008). Global mental health: changing norms, constant rights. Georgetown Journal of International Affairs. 83-92. Retrieved from: http://journal.georgetown.edu/wp-content/uploads/9.1-Gostin.pdf

Gostin, L.O., Gable, L. (2004). The human rights of persons with mental disabilities: a global perspective on the application of human rights principles to mental health. Georgetown Law The Scholarly Commons. Retrieved from: http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1088&context=facpub&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dsignatories%2520united%2520nations%25E2%2580%2599%2520principles%2520for%2520the%2520protection%2520of%2520persons%2520with%2520mental%2520illness%2520and%2520the%2520improvement%2520of%2520mental%2520health%2520care%2520%26source%3Dweb%26cd%3D3%26ved%3D0CD8QFjAC%26url%3Dhttp%253A%252F%252Fscholarship.law.georgetown.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D1088%2526context%253Dfacpub%26ei%3D-HESUcyEGquI2gXAzICABA%26usg%3DAFQjCNEUvifhJ0O6nVvqRQWfyXxH0_8wsg%26bvm%3Dbv.41934586%2Cd.b2I%26cad%3Drja#search=%22signatories%20united%20nations%E2%80%99%20principles%20protection%20persons%20mental%20illness%20improvement%20mental%20health%20care%22

Latif, Z. and Malik, M.A. (2012). Mental health legislation in Ireland: a lot done, more to do. The Journal of the American Academy of Psychiatry and the Law. Retrieved from: http://www.jaapl.org/content/40/2/266.full.pdf

McDonough, J. (2012, December 17). Mental health and the ACA. Boston Globe. Retrieved from: http://www.boston.com/lifestyle/health/health_stew/2012/12/mental_health_and_the_aca.html

Mental Health (2010, March 29). Retrieved from: http://www.womenshealth.gov/mental-health/your-rights/americans-disability-act.cfm

Mental Health Alliance (2007). The Mental Health Act 2007: the final report. Retrieved from: http://www.mentalhealthalliance.org.uk/mentalhealthbill/Alliance_MHAct07_Final_Report.pdf

Mental health parity and Addiction Equity Act. Retrieved from: http://www.samhsa.gov/healthReform/parity/

National Association on Mental Illness (2009). Grading the States. Chapter 3: The State of Public Mental Health Services Across the Nation, 23-46. Retrieved from: http://www.nami.org/gtsTemplate09.cfm?Section=Findings&Template=/ContentManagement/ContentDisplay.cfm&ContentID=75255

National Association on Mental Illness (n.d.). New Health Coverage: Opportunities for People with Mental Illness. Retrieved from: http://www.nami.org/Content/NavigationMenu/Inform_Yourself/About_Public_Policy/
Issue_Spotlights/ACAFactSheet1NewHealthCoverage.pdf

National Alliance on Mental Illness (November 2011). State Mental Health Cuts: The Continuing Crisis. Retrieved from: http://www.nami.org/ContentManagement/ContentDisplay.cfm?ContentFileID=147763

National Alliance on Mental Illness (n.d.) The Federal Mental Health Courts Program. Retrieved from: http://www.nami.org/Template.cfm?Section=Issue_Spotlights&template=/ContentManagement/ContentDisplay.cfm&ContentID=14803

Resnikoff, N. (2012, December 17). The other conversation: America’s decrepit mental health infrastructure. Retrieved from: http://tv.msnbc.com/2012/12/17/the-other-conversation-americas-decrepit-mental-health-infrastructure/

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