The Prevalence of Mental Illness
Millions of Americans are affected by mental illness annually; it is a widespread health issue that permeates every level of society. According to the National Alliance on Mental Illness, in 2021, 22.8 percent of U.S. adults, equivalent to 57.8 million people, experienced some form of mental illness, representing roughly one in every five adults. More specifically, serious mental illness, such as schizophrenia and bipolar disorder, affected 5.5 percent of U.S. adults, about 14.1 million people, demonstrating the profound scope of mental health issues that require significant attention and resources.
It is important to note that mental illness affects people differently. One person with schizophrenia may be chronically low functioning and require significant assistance even when optimally treated. Another person with the same illness may be a chaired professor at a major university when the illness is well controlled but require compulsory treatment in a locked psychiatric hospital during acute episodes of schizophrenia.
The prevalence of mental illness among U.S. youth is similarly alarming, with 16.5 percent of those aged 6 to 17 experiencing a mental health disorder in 2016, totaling 7.7 million young individuals. Based on the experience of child and adolescent psychiatric clinics, we expect that these statistics have worsened significantly since the COVID-19 pandemic.
The intersection of mental illness with substance use disorder is notable as well, with 7.6 percent of U.S. adults experiencing co-occurring conditions in 2021, equating to 19.4 million people.
Demographically, mental illness prevalence varies significantly, with higher rates observed in mixed/multiracial and LGBTQ+ populations, indicating the nuanced factors contributing to mental health disparities. Despite the clear need, the treatment rates reveal a significant gap: Only 47.2 percent of U.S. adults with mental illness received treatment in 2021. The delay between the onset of symptoms and treatment averages 11 years. The reason for this delay is multifactorial, and though various systemic insufficiencies are often cited as the reason for this treatment gap, a significant, and often overlooked, contributor is that persons with mental illness often lack insight into their conditions and do not want treatment. Other times, high-functioning professionals with mental illness may recognize they need treatment but avoid it out of fear of professional consequences. Such beliefs are prevalent in the legal, medical, and aviation fields, among others. The complex and high-stakes balancing act between professional organizations monitoring impaired professionals to protect the public and encouraging professionals to reach out for help if they need it is a subject that merits its own discussion.
The ripple effects of untreated mental illness extend beyond the individual, affecting families, communities, and the economy. For instance, people with depression are at a heightened risk for developing cardiovascular and metabolic diseases, leading to decreased life expectancy. Mental illness has significant effects on unemployment rates, homelessness, and educational attainment. Moreover, the criminal justice system sees a disproportionate representation of individuals with mental health conditions. In my practice, criminal defense attorneys consult me to evaluate such individuals, and I often find that their untreated mental illness was the proximate cause of the crime, regardless of whether it satisfies the legal standard for insanity. Thus, their untreated illness affects not only their freedom (conviction for a crime leading to significant incarceration) but also the community at large, where others are victimized through the criminal conduct that is a product of their illness. Commuters in New York City are now well familiar with stories of mentally ill persons shoving commuters into incoming subway trains.
Other persons with untreated mental illness may not commit crimes, but they may needlessly suffer emotional and psychosocial distress from their untreated illness. A bizarre and recent development I have noticed is that the seriously mentally ill homeless population in certain communities is treated as a disadvantaged class warranting protection from intervention by ostensibly well-meaning, but ignorant, political groups. Absent interventions, this population suffers hunger, malnourishment, emotional distress, and, perhaps unique to Arizona, second- and third-degree burns from walking barefoot on the concrete in 120-degree weather. I have personally evaluated seriously mentally ill homeless patients who passed out from drug abuse on the Phoenix metropolitan area roads during a summer day. These evaluations took place in the county burn unit, where they suffered from full-thickness burns across a substantial proportion of their body. Recently, a case out of California shocked the public. A man picked up the severed leg of a pedestrian hit by a train and began eating the leg while captured on video, ultimately stopping once surrounded by law enforcement officers. These individuals are grappling with serious mental illnesses, not merely exhibiting unorthodox behaviors. Far from flourishing in freedom, they are constrained by their conditions, deserving of both dignity and the liberty their illness denies them.
Involuntary Treatment and Its Legal Basis
Involuntary treatment for the mentally ill is something that is rife with controversy. When one views the diagnoses of persons admitted to asylums in the 19th century, after taking a moment or two to scoff at the absurdity of admitting diagnoses such as “excessive cigarette smoking” or “marital infidelity,” it becomes clear why judicial review was recognized as a necessary gatekeeping requirement for compulsory mental health treatment. This is not without peril; the wheels of justice are known to turn slowly.
Involuntary treatment itself is something that requires defining. Depending on the jurisdiction, there are varying degrees of involuntary treatment. Some jurisdictions have a more permissive statute to involuntarily hospitalize a patient in a locked inpatient unit but prohibit the administration of psychotropic medication over the individual’s objection absent additional judicial review with a higher burden of proof. This can lead to the bizarre situation in which an individual is hospitalized against his or her will in a locked psychiatric unit but receives no treatment and therefore will almost assuredly languish for weeks or months in a hospital with no statistically meaningful hope of enjoying improvement in his or her symptoms. Some jurisdictions require further judicial review for electroconvulsive therapy (ECT), a very effective treatment for many mental illnesses that has been proven to save lives by reducing suicide. Due to inaccurate and prejudicial media depiction in films such as One Flew Over the Cuckoo’s Nest, ECT is unfairly maligned in public opinion as well as in some jurisdictions. It cannot be overemphasized that ECT is one of the medical interventions with the strongest evidence base for its use. It unequivocally saves lives.
The legal basis for involuntary treatment of the mentally ill largely rests on two concepts—police powers and parens patriae. To the chagrin of many psychiatrists and pro-treatment advocacy groups, the U.S. Supreme Court has fallen short of holding that there is a legal right to treatment. Prior rulings, such as O’Connor v. Donaldson (1975), largely affirmed the support for individual civil liberties and emphasized that involuntary hospitalization can occur only when an individual is placing himself or herself or others at risk. Over time, all of us in the mental health and adjacent fields (such as law enforcement) became fixated on the concept of imminent dangerousness.
But what is imminent dangerousness? I have yet to see a consensus among psychiatrists or jurists as to what would meet this criterion. Were the perpetrators of the Columbine High School massacre imminently dangerous on March 20, 1999, a full month prior to their deadly attack that claimed the lives of 13 students (not including the perpetrators’ suicides) and left 24 others injured? If not, how close in temporal proximity does one need to be to a massacre or a suicide for it to be considered imminently dangerous? And on the contrary, if an individual is planning to harm himself or herself or others in the distant future, when can intervention take place? What about gradual destruction, as is the case for severely mentally ill persons who neglect their basic care needs? If delusional individuals with diabetes stop making efforts to control their diabetes, do they not meet criteria for involuntary treatment just because the danger they pose to themselves will take years to manifest itself? What about those with substance use disorders who slowly kill themselves via substance ingestion? These are questions that doctors and courts must wrestle with.
I would be remiss not to discuss the phenomenon of people who are dangerous but not mentally ill. In public debate, there is often a false assumption that all random and “senseless” violence must be the product of a mind afflicted by mental illness. This is simply not the case. Most mass murderers meticulously and thoughtfully planned and executed their crimes. They are often curators of grievances who assume the persecutory position and view violence as just retribution to be exacted from the society responsible for their “plight.” Serial murderers are often motivated by the mundane desire for sexual gratification. When retained by the prosecution in a criminal case, the question I am often asked is some variation of “Was the defendant mentally ill and was the crime causally related to the mental illness, should it exist?” Forensic psychiatry as a medical discipline has spent substantial time investigating and understanding the differences between a mentally ill offender and a rational offender who knowingly chooses to harm others—the “mad or bad” conundrum, as it is often colloquially referred to.
The Role of Families
For the family and loved ones of a person with severe mental illness, there are endless frustrations. Due to the emphasis on individual liberties, if their loved one is not overtly expressing destructive thoughts, they may feel powerless when mental health professionals advise that their loved one still has a right to refuse treatment, even if that refusal is not based on a rational understanding of his or her condition and the potential advantages of treatment. Some families with more means may wish to pursue guardianship or conservatorship for such people. This option is often out of reach to lower-income households, and it should be noted that an uncontested guardianship can incur fees in excess of $10,000. Unlike involuntary commitment standards, guardianship and conservatorship standards typically rest on the individual’s competency—the individual’s ability to make and communicate informed decisions regarding his or her person. Thus, a delusional person who is not imminently dangerous to himself or herself or to others may nonetheless meet criteria for guardianship. The guardian can then compel the putative ward to receive mental health care. Even with a guardianship in place, the logistics of actually enforcing treatment can be difficult and fraught with roadblocks. For example, the guardian may call an ambulance to transport the ward to a psychiatric hospital, but if the ward refuses to assent to transport and is not assessed as imminently dangerous by the emergency medical technicians, the ambulance company may refuse the transport.
Many families still experience substantial trepidation about inviting the legal system into their lives—especially when it can involve discussing the behavioral manifestations of a family member’s illness in open court, factors directly relevant to consideration for involuntary treatment. And even when guardianship proceedings are successful, the issue of who should be the guardian is fraught with turmoil. Family members often do not want to serve as guardian, as it alters the dynamic between themselves and their loved ones. Others may want to serve as guardian, but for reasons that are inconsistent with the best interests of the person under guardianship. If not the family member, then should a public fiduciary step in? Financial resources can be a de facto bar from the public fiduciary, so a professional fiduciary must be sought. Media exposés and fictional programming suggest that these professionals can be unscrupulous and exploit their dynamic for financial gain at the expense of the person under guardianship.
Another dynamic that can emerge within families in these situations is different family members supporting different legal outcomes. A person’s mother may support involuntary mental health treatment or guardianship, but the father or siblings may not. Diverging views within a family can lead to further discord and ugly court battles, with myriad filings and expensive litigation. In certain situations, such as family law, the mentally ill family member becomes analogous to a legal pawn, with one or both sides cynically attempting to leverage their suffering for an advantageous position over one another.
Further complicating this labyrinth to treatment is that all of these legal concepts and the actual litigation of the issues can be moot if the authorities simply do not wish to transport the individual. Often, law enforcement and paramedics will refuse to transport a purportedly mentally ill person if the person denies the allegations of their illness and dangerousness. Had the parents of the Columbine perpetrators found their diaries and petitioned for their treatment, would arguing that the writings were a “joke” or fantasy have placated the responding authorities? Professional guardians can run into similar problems; even when a person is under guardianship and determined to be in need of treatment, paramedics may refuse to transport the ward if the ward refuses to assent. Patients under court-ordered treatment may be funneled into a community mental health system that fails to adequately check up on them or file for needed extensions of their court-ordered treatment.
The Stakes of Litigation
No discussion of this system would be complete without an overview of the stakes of litigation. In mental health and guardianship courts, the stakes are often literally life and death. The courtroom actors often have an abstract concept of the potential consequences. They may view the process as a thought exercise or game with competing narratives: Is this a person who moves to the beat of his or her own drum, or is this a person suffering potentially irreversible results of a mental illness? The more compelling story wins. They may not have experienced a family member whose life was upended and nearly ended by mental illness. They often do not have the experience of helplessly having a loved one deceive them into believing that he or she will not hurt himself or herself or others, only for the loved one to later run into a freeway, take a lethal overdose, or break down the bedroom door in the middle of the night and throw a TV through a sliding glass window while yelling that the loved one’s father is an impostor who is actually Satan. They likely have not experienced the rollercoaster of emotions that those caring for a family member with mental illness do: the rush of relief and hope that occurs when they learn that their family member is safe within the confines of an inpatient psychiatric emergency department, then the horror of witnessing their loved one be released with no or minimal treatment after their loved one informs the “provider” (often a nurse practitioner with limited training) that he or she does not plan to hurt himself or herself or anyone else. Such family members may find themselves uniquely capable of empathizing with mythic Cassandra’s plight—like Cassandra, they are tormented with miserable visions of the future but are discredited by those with the power to change it.
In the courtroom, the minimum standard of proof to compel treatment or appoint a guardian or conservator is clear and convincing evidence. Some jurisdictions may increase the threshold to beyond a reasonable doubt. Some jurisdictions may explicitly exclude collateral information, a critical element of the psychiatric assessment, as hearsay evidence. This creates a mismatch between the scientific practice of good psychiatry and the rules of the courtroom. If testimony is limited to what was directly observed by the psychiatrist, there is an ethical conundrum. Prior to testifying, the psychiatrist takes an oath to “tell the truth, the whole truth, and nothing but the truth.” If the psychiatrist cannot include collateral information in testimony, is the psychiatrist telling the whole truth? Is it not a lie by omission to fail to correct the erroneous misconception that the patient has not been dangerous, when the psychiatrist knows that prior to admission, the patient attempted to set fire to an occupied residence? If the family member who observed the fire-setting refuses to testify, often out of fear of reprisal from the patient, that information may be inadmissible. Integrating the collateral information with the observed information is crucial in formulating a good-faith risk assessment. It is necessary to seeking the truth.
From the patients’ or respondents’ perspective, there are a number of remedies and resources available to oppose superfluous and unjust actions. They can hire their own independent expert, request a jury trial, and call their own witnesses. The previously mentioned evidentiary standards naturally benefit them. Even if the respondent “loses” at trial, there is some form of periodic judicial review. The need for ongoing compulsory treatment and guardianship or conservatorship can be periodically challenged.
How Litigators Can Help
How can the litigators make sure they assist the court in “getting it right”? For starters, always insist on holding a pretrial conference with your expert. Forensic psychiatrists like myself understand that such conferences are important to trial, but general psychiatrists may not. Some education regarding the purpose of the conference may be necessary, along with reassurance that the purpose of the meeting is not to influence their opinions but rather to prepare to present a compelling format for them. Discuss the relevant facts. Ask your expert about what opinions he or she holds unequivocally and those that are more ambiguous. Embrace the unknown—do not attempt to conceal it. Instead, contextualize it. Psychiatry is a field that is rife with uncertainty; making sense of ambiguity is often part of the draw for its practitioners. Discuss the anticipated opposition strategy. Identify misleading narratives or stigma the opposing side may seek to exploit, and make sure the finder of fact is educated on redirect. While writing this, I had to take a break to testify virtually in a hearing at which the respondent’s attorney attempted to impeach my direct-examination testimony by demanding I answer “yes or no” to a question about whether his client consistently denied experiencing suicidal thoughts to everyone except the petitioner. The truthful answer, of course, was yes. The whole truth is that the suicidal person views the authorities and treatment providers as adversaries seeking to prolong his life and believes he must foil those efforts. For that reason, the person will frequently respond deceptively when questioned by authorities or doctors.
The mental health system in America is widely viewed as broken. The scale and scope of the problem are often seen as overwhelming and insurmountable, so inertia takes over and we tend to resign ourselves to the status quo. There are practical solutions.
One is very simple but requires a time commitment—education. The public, and even healthcare professionals, are often inadequately familiar with the availability of mental health treatment. They are often even less educated about the standards of compulsory mental health treatment. The persistent and dangerous misconception among law enforcement, health care, and legal professionals—that a person’s verbal assurance of non-harm, despite contradictory behavioral and collateral evidence, negates their potential danger—must be unequivocally dismantled and laid to rest. This fallacy undermines the safety and well-being of individuals and communities alike, and it is our duty to eradicate it thoroughly from our professional practices. Community mental health clinics are often staffed by mid-level “providers” who require 500 to 600 hours of clinical shadowing prior to independent practice. When compared with the 12,000 hours of direct clinical experience a general psychiatrist is required to complete, is it any wonder that mistakes are made? Such mid-level providers certainly should not be qualified as medical experts to offer testimony in these matters; legislative efforts to allow for it warrant vigorous opposition from the medical and legal communities. Psychiatrists and litigators should work collectively to improve the system and identify shortcomings and areas for improvement, all while recognizing the need to protect Americans’ natural rights in the process.