Research o n the management and treatment of insanity acquittees and the right to refuse treatment illustrates the need for empirical analysis in the overlafi ing areas of law, mental health services, and public policy issues.

Mental Health Services Research with Forensic Populations Mary H . Williams, Joseph D. Bloom

A natural interest rising out of the collaboration between the Department of Psychiatry at Oregon Health Sciences University and the state Mental Health Division has been a focus on law, mental health services, and public policy issues. The Mental Health Division is responsible for a number of individuals involved in either the civil or criminal legal sys- tems. Issues raised in Oregon have national implications since each ju- risdiction must develop appropriate responses to the many seriously mentally ill patients committed to its care by the legal system. Both on the local and national level, a lack of empirical data has impaired the rational development of policy and the provision of mental health ser- vices in this area. Instead of an empirical focus, much of the commentary has reflected the often acrimonious debate between patient rights advo- cates and mental health professionals on the nature and character of involuntary treatment and on the efficacy of certain psychiatric treatments for the seriously mentally ill patient.

We have used Oregon law and Oregon programs as examples and in some cases as models and have focused our efforts on empirical studies of the impact of mental health laws and regulations on the seriously men-

83 J. D. Bloom (ed.). Stab-Universify Colhborafzon: The Oregon Expcnmce. New Directions for Mental Health Services, no. 44. San Francisco: Jossey-Bass, Winter 1989.

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tally ill patient. We continue to investigate several areas in detail: the management and treatment of insanity acquittees, civil commitment, and the right to refuse treatment. In addition, we have begun exploratory studies in other areas, including outpatient commitment and issues raised when the seriously mentally ill drive or are restricted from driving (Godard and Bloom, 1989). We believe that a research agenda in mental health services is incomplete without a focus on forensic issues and foren- sic programs, since so many patients have in the past been or are cur- rently regulated and treated in these programs. To provide examples of this type of research, this chapter will describe our work in relation to insanity acquittees and in the area of treatment refusal. Within each area we will discuss our current program and future directions. Our work in civil commitment will not be discussed here as it was briefly described in Chapters Five and Six.

Management and Treatment of Insanity Acquittees

For the past three decades, the insanity defense has been the most controversial interaction between law and mental health (Rogers, Bloom, and Manson, 1986). Although the recent case of John Hinckley, Jr., re- newed the national debate on the insanity defense, this increased atten- tion was primarily a continuation of the growing dissatisfaction with insanity defense itself and with the systems designed to manage and treat the insanity acquittee. Several attempts to limit the insanity defense have been developed, such as Michigan’s 1975 guilty-but-mentally-ill statute (Mich. Comp. Laws Ann. Q 768.36(1) et seq., 1975) and, more recently, attempts to attenuate and/or abolish the insanity defense in states such as Montana (Mont. Rev Codes Q 45-2-101 (34), 46-14-102, 46-14-201, 1980), Idaho (Idaho Code Ann. Q 18-207(a), 1982), and Utah (Utah Code Ann.

In the mid 1970s, Oregon was experiencing similar concerns about the insanity defense. In particular, concerns were raised about public safety, overcrowding in the state mental hospital, and lack of adequate community programs to supervise or treat dangerous mentally ill offend- ers. The 1978 Oregon legislative session responded to these concerns by creating the Psychiatric Security Review Board (PSRB), a unique agency designed to supervise those persons found not guilty by reason of insanity (NGRI) (Or. Rev. Stat. Q 161.385 et seq., 1978). The board assumes all authority previously exercised by the courts after a person is found NGRI. In 1982 Oregon’s new system was cited by the American Psychiatric As- sociation, in its position paper on the insanity defense, as a potential national model for the management of insanity acquittees (American Psychiatric Association, 1983). Subsequently, Connecticut has developed

§ 76-2-305( l), 1983).

a PSRB (Con. Stat. Ann. 5 17-257a el seq., 1985), while other states are considering similar legislation and observing Oregon’s experiment with interest.

The board is unique in its composition and in its independence from both the criminal justice and mental health systems. It is a five-member part-time board, required by law to be composed of a lawyer, a psychia- trist, a psychologist, a parole or probation expert, and a lay citizen. Following the insanity finding, the trial judge determines whether the person continues to suffer from a mental disease or defect and presents a substantial danger to others. If the answer to either question is no, the person is released with no further supervision. We believe this to be an unusual occurrence. More likely, if the answer to both questions is yes, the person is placed under the jurisdiction of the PSRB for a period of time set by the judge and equal to the maximum sentence that he or she could have received if found guilty of the crime.

From that point on, the PSRB assumes control over whether the per- son is hospitalized, conditionally released into the community, revoked from conditional release, or discharged from the board’s jurisdiction. The PSRB is mandated by statute to periodically conduct hearings to review the status of each person. In addition, hearings to consider condi- tional release or discharge may be initiated by hospital personnel or the client.

The legal basis for conditional release rests on several important statu- tory changes in Oregon law at the time the PSRB was created. First, the court and the PSRB are required by statute to have as their primary con- cern the protection of society (ORS § 161.327(5) and ORS § 161.336(10)). Second, and perhaps most important, under the statutes “a person affected by a mental disease or defect in a state of remission is considered to have a mental disease or defect requiring supervision when the disease may, with reasonable medical probability, occasionally become active and, when active, render the person a danger to others” (ORS 5 161.327(3) and ORS

161.336(3)). This important statutory provision was intended to ensure that those persons with chronic remitting illnesses responsive to medica- tion would continue to be supervised even when in remission, to prevent them, upon discharge, from discontinuing their medication and again becoming symptomatic and possibly reoffending.

Over eleven hundred individuals have been placed under PSRB juris- diction since its inception in 1978. Approximately 88 percent have been male and 75 percent found NGRI for felony offenses. The average age is thirty-two, ranging from seventeen to eighty-three. The majority have a diagnosis of psychosis (73 percent), primarily schizophrenia (56 percent). We have conducted a number of studies focusing on the characteristics of these insanity acquittees and on the PSRB as a system for managing the

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insanity acquittee (Bloom, Rogers, and Manson, 1982; Rogers, Bloom, and Manson, 1984; Rogers and Bloom, 1984; Bloom, Rogers, Manson, and Williams, 1986; Bloom, Williams, Rogers, and Barbur, 1986). These early studies pointed to the critical importance of monitored conditional release and the availability of a speedy revocation mechanism for the success of the PSRB system. In the first three years of PSRB functioning, 165 individuals were placed on conditional release. During the period of release, only 16 of these individuals were charged with new crimes, indi- cating a favorable recidivism rate. In addition, 66 of the 165 were revoked, most as a result of deterioration in their mental health status or other reasons not related to new crimes. In a comparison between those who were revoked and those who remained successfully on conditional release, the revoked group was significantly younger, and consisted of more males and more individuals with a psychotic diagnosis.

Presently, under an NIMH grant, we have expanded our investigation of the PSRB with a special emphasis on the utilization of state mental health services and on criminal justice involvement both prior to and subsequent to discharge from PSRB supervision. Additionally, we are continuing to explore the critically important area of monitored condi- tional release, including a focus on the treatment received by the insanity acquittee while on conditional release in the community. Our prelimi- nary impressions are that the typical PSRB client is a chronic schizo- phrenic individual with a long history of involvement in both the mental health and criminal justice systems. The mechanisms of conditional release and revocation remain as important factors in the success of the PSRB system. PSRB clients who have been conditionally released appear to use community mental health services more following their discharge from PSRB than before their assignment to it.

The present study also includes periodic interviews over a two-year period with a sample of PSRB clients on conditional release and their case managers. For those subjects who are revoked, we conduct an inter- view within one week of revocation to gather information on the events leading to the revocation. These interviews will lead to a broadened under- standing of the treatment provided to the PSRB client in the community and the factors that contribute to the success or failure of community placement.

Future Directions. As a result of these present studies, we are further convinced that a functional and realistic insanity defense system can be an important and positive component of the service network for the seriously mentally ill. Given the realities of deinstitutionalization, more seriously ill persons are exposed to the criminal justice system (Bloom, Shore, and Arvidson, 1981; Lamb and Grant, 1982; Lamb, 1987). The criminal law is usually interested in removing the seriously ill from the prison system. The insanity defense can accomplish this purpose and at

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the same time provide the insanity acquittee with humane treatment and an opportunity to live, with certain restrictions, in the community.

The PSRB system is one way to accomplish these goals. The moni- tored conditional release mechanism available to the PSRB, along with the power of revocation, demonstrates one such model and also contrib- utes to the debate regarding outpatient civil commitment. Outpatient civil commitment has been attracting a great deal of attention lately (Miller, 1985). Several states, including North Carolina, Hawaii, and Ari- zona, have amended their civil commitment laws to allow for outpatient commitment. In Oregon recent statutory changes established outpatient commitment as an option both at the time of commitment and at hospi- tal discharge. We are interested in investigating this statutory change-as its use increases-as a form of mandated outpatient commitment. We strongly believe that monitored outpatient treatment is a realistic and humane response to deinstitutionalization and represents the best chance for some patients to make a successful community adjustment.

In addition to studies of individuals under the jurisdiction of the PSRB, we have begun to examine the relationship between the PSRB and the state Mental Health Division from a systems perspective. For example, beginning in 1984-85, the census of the inpatient forensic pop- ulation began a steady rise, which has continued to the present time. Because of this unplanned rise in the inpatient PSRB population, the division has had to open new forensic beds and attempt to arrange for the development of increased community slots for conditionally released PSRB clients. We have made an initial investigation into the factors that may have stimulated this increased hospital usage (Williams and others, 1989). We see that the primary cause for these changes seems to rest with a change in decision-making patterns on the part of the PSRB in the time period following the Hinckley trial, resulting in longer hospital stays and decreased discretionary discharges. Additional factors influenc- ing the change in decision making and the increased hospital census may include personnel changes on the board, staffing shortages in the hospital (which may result in fewer considerations for conditional release or discharge being initiated by hospital staff), a saturation of community placements available for conditionally released PSRB clients, and height- ened fears of malpractice litigation following a recent lawsuit against a community treatment agency (Cuzn v. Rijken, 1985).

Another aspect of the relationship between the PSRB system and the Mental Health Division that we have begun to investigate is the costs of a PSRB-type system and the fiscal implications for the Mental Health Division (Bigelow, Bloom, and Williams, 1989). This is an important agenda item for a program interested in mental health services research, and we will continue to explore these relationships between the PSRB and the Mental Health Division in future projects.

In addition, we plan to look at the system within a larger framework. We will focus more on the interface between the hospital and the com- munity; on the client’s readiness for release in terms of the stability of his or her mental health condition; on the question of protection of the community as embodied in the question of future dangerousness; and on the availability of appropriate community resources. A PSRB client may be conditionally released from the hospital or discharged from the board’s jurisdiction if the client is found to be no longer mentally ill and/or no longer dangerous. Of concern is the relative importance of future dan- gerousness in these release decisions. We plan to compare independent determinations of readiness for release with the board’s determinations for individuals reviewed for conditional release or discharge. This is an important direction for future research given the continued concern for public safety and the increased hospital census and length of stay. These questions go to the heart of the role the insanity defense plays in society. Issues of fairness and stigma are of critical importance here, as well as a concern that the insanity defense management system (or any other men- tal health system) not be used as a system of preventive detention for persons thought likely to commit violent acts in the future (Appelbaum, 1988).

Civil Commitment and the Right to Refuse Treatment

We believe that civil commitment is by far the most important inter- action between law and mental health. It is intermediate between the voluntary and criminal justice systems, and although patient advocates often raise concerns about the legal and civil libertarian implications of commitment, it provides an acceptable intervention in a population whose illnesses often prevent the delivery of voluntary services. Civil commitment deals with many more individuals than does the insanity defense, and as a civil procedure, it is potentially less stigmatizing than the criminal justice system. We have conducted numerous studies of civil commitment because of the importance we attach to this area. For the purposes of this chapter, we will confine the discussion to our work in treatment refusal.

We view the right to refuse treatment primarily as a derivative of pro- cedures for civil commitment arising from statutory law, which separates civil commitment and civil competency. Once this separation is made, the route is open for an involuntarily committed patient who retains compe- tency to refuse treatment, based on the long-recognized common-law prin- ciple that requires informed consent for any medical treatment.

Three main procedural models have emerged-mainly from case law-to deal with the refusing patient in nonemergency situations. The clearest response to the dilemma of treatment refusal was enacted by the

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Utah legislature, following a federal district court case (A.E. & R.R. v. Mitchell, 1980). Following this decision, the Utah legislature amended its civil commitment statutes by adding a specific finding-of incompetency to make treatment decisions-to the criteria necessary for civil com- mitment (Lebegue and Clark, 1981). The Utah model is a “front-end” solution to this problem, coming at the time of the civil commitment hearing. In this procedure, the right to refuse treatment is extinguished prior to the patient’s hospitalization as part of the commitment decision. This solution was recently adopted by the Kansas legislature (Kansas Session Laws, H.G. 2040, 1986).

Two other contrasting models have emerged from case law, one emphasizing medical and the other legal decision making. These are “back-end” solutions to the problem, procedures that come into play only after the patient is committed and then refuses treatment.

The model favoring legal decision making was developed in Massa- chusetts in a series of decisions originally heard in federal district court in 1979 (Rogers v. O h , 1979). Massachusetts requires that any civilly committed patient who refuses treatment be returned to court for a com- petency hearing, in which the judge determines the patient’s competency to give informed consent and, in addition, renders a substituted judgment for patients who are determined to be incompetent in that regard (Mills and Gutheil, 1981).

The model favoring medical decision making was developed in New Jersey through a series of cases initially filed in 1978 (Rennie v. Klein, 1978). In this case, the court held that due process did not have to be provided by a judicial hearing. The case established a model based on a review of the refusal by an independent psychiatrist who then advised the hospital superintendent as to whether the patient’s refusal should be overridden.

These medically and legally oriented models share a similar con- cern for the competency of the refusing patient but take very different approaches as to who makes the decisions for the mentally ill. Legal decisions concerning the right to refuse treatment have led to active de- bate in the psychiatric literature (Appelbaum and Gutheil, 1979; Mills, 1980; Appelbaum and Gutheil, 1981) and the legal literature (Symonds, 1980; UMKC Law Review, 1982; Temple, 1986) over philosophical and ethical issues, fears of intrusion by law or psychiatry, and concerns about clinical treatment and patient rights. The empirical literature has neces- sarily lagged behind the legal-psychiatric debate and affords only a min- imal understanding of both the patient population affected by the right to refuse treatment and the strengths and weaknesses of the procedural method employed. Only in the last three to four years have empirical studies begun to appear with some frequency in the literature.

Appelbaum and Hogue (1986) reviewed the available literature on the

right to refuse treatment and suggested a research agenda in this area. They were concerned that many of the studies were nonsystematic and that they suffered from numerous methodological flaws. They summa- rized the literature as follows:

Short-term refusal is frequent, but long-term refusal rare. Refusers are likely to be sicker than accepting patients, but it is unclear if they are legally incompetent. Over the short term, many refusers do poorly in the hospital, but if ultimately treated, they do at least as well as other patients. Finally patients’ refusals are usually not upheld, with the vast majority of refusing patients being treated, at least initially, over their objections [P. 951.

Although not discussed by Appelbaum and Hogue, economic impact studies are also needed in this area because of the critical shortage of treatment dollars in public mental health systems. If the present trend continues and, regardless of the procedures employed, most patient refus- als are overridden, and if these procedures have serious economic impact on mental health systems, then public policymakers must critically re- examine the goals of the procedures themselves with a view toward mak- ing them more realistic and economically reasonable.

In 1983 the Oregon Mental Health Division promulgated an in- formed consent rule including a section that provided the basic frame- work and procedure for overriding treatment refusal in nonemergency situations (Oregon Administrative Rules, 1983). This model was based on the statutes regulating the use of electroconvulsive therapy in Oregon and was similar to the medical decision-making model of the New Jersey case mentioned earlier. The passage of the administrative rule gave us an opportunity to investigate one of the most controversial of the current interactions between law and mental health. To date we have conducted five studies on various aspects of the rule and its implementation (Bloom, Faulkner, Holm, and Rawlinson, 1984; Young and others, 1986; Godard, Bloom, Williams, and Faulkner, 1986; Bloom, Williams, Faulkner, and Godard, 1988; Williams and others, 1988).

We examined the first two years of the rule’s implementation (Godard, Bloom, Williams, and Faulkner, 1986). Our conclusions were similar to Appelbaum and Hogue’s (1986) summary. There were 412 refusers and 432 refusal episodes during this two-year period. Refusal was distributed through all hospitals and specialty units in the system, and it spanned all age groups. Refusing patients suffered from serious mental illnesses, mainly schizophrenia and mania. Slightly more than half of the refusing civilly committed patients were men. Ninety-five percent of the refusals were overridden.

In a study of treatment refusal among insanity acquittees (Williams

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and others, 1988), we matched thirty-three insanity acquittees who had refused drug treatment with nonrefusing hospitalized insanity acquittees. No measurable differences in length of hospitalization were found. How- ever, when compared with the average hospitalized insanity acquittee instead of the matched sample, treatment refusers spent significantly greater proportions of their PSRB time hospitalized rather than on con- ditional release. These differences did not appear to be related to the issue of treatment refusal and will require additional investigation.

We are currently exploring treatment refusal in one state hospital in greater detail. In 1986, 172 patients at this hospital were involved in over- ride procedures because of treatment refusal. One aim of this project is to describe the characteristics of these refusal episodes, including a descrip- tion of the patients involved, the reasons given for refusal, alternative measures used during the refusal period (such as seclusion and restraint), and the outcome of the override process. In addition, for a larger sample made up of the treatment refusers and all patients civilly committed to this state hospital during 1986, we are examining utilization of state mental health services from 1980 through 1988 based on data from the computerized Mental Health Information System (MHIS; see Chapter Seven for a description of this computerized data base). This includes utilization of both community services as well as hospital services.

Finally, for the refuser group and a random sample of the civilly committed nonrefusal patients, we are reviewing hospital charts to collect more detailed information on the course of hospital episodes, including reason for admission, medications received and refused, diagnosis, nurs- ing assessment of special patient needs, and treatment plans. For the refuser group this information is divided into three time periods: prior to override, during the override process, and subsequent to the override decision. Thus, we will be able to compare refusers with nonrefusing civilly committed patients as well as compare the experiences of the refus- ing patients before and after the override process. In addition to being used for the comparisons of service utilization and experiences during the hospital episode, these data will be translated into cost coefficients, which will allow us to compare the costs to the mental health system between these two groups of patients.

Although we frequently refer to “refusers” and “nonrefusers,” a more accurate description would be “patients handled through the administra- tive procedures for override of treatment refusal.” Many of the “nonre- fusing” patients refuse medication at one time or another during their hospital stay. One of the questions we hope to address concerns the dif- ferent patterns of treatment refusal and what factors may be associated with a decision to implement the override process.

Future Directions. In addition, this study will provide a rich data base on a large sample of civilly committed patients, which may be useful

in answering other questions about the nature of civil commitment and its relationship to utilization of community mental health services. We will have detailed information on a sample of approximately 540 patients civilly committed in one state hospital during 1986. With this data we will be able to describe use of state mental health services over a nine- year period. We hope to be able to distinguish the types of patients who have “successful” patterns of utilization (for example, those who use community services and are able to minimize hospitalizations) from those who have “unsuccessful” patterns. These questions are increasing in importance as the inpatient civil commitment population continues to rise.

The Mental Health Division is currently facing threats to hospital accreditation partly because of its treating patients over census and its inability to stem the tide of involuntary patients. It is critical then that we attempt to understand the relationship between civil commitment, mental health history, and utilization of state mental health services.

There is significant need for a closer examination of the factors that culminate in all types of admissions to state institutions, both voluntary and involuntary. Careful analyses are also needed of those community mental health systems that have been both successful and unsuccessful in their attempts to manage significantly impaired psychiatric patients, whose behaviors are disturbed enough to warrant consideration of civil commitment. It is to be hoped these types of studies will identify factors that might promote more rational and effective approaches to civil com- mitment processes and diversion techniques at the community level, with less dependence on state institutions.

Conclusion

Each year civil commitment and criminal justice laws and proceed- ings affect the lives of many seriously mentally ill patients. These laws are formed in the crucible of public opinion and are molded by pressures and counterpressures of the legislative and judicial processes. Resultant law may be viewed as good, bad, or neutral, depending on one’s perspec- tive; there are no absolutes in this area, only the ebb and flow of themes working their way through law. The themes may grow to represent prin- ciples that are then used to govern rational action, or they may continue to be reflected in an endless cycle of debate that results in no action (or merely reaction) to the emotional aspect of the debate. The emotionality of such debate is understandable since the law and mental health interac- tion represents the convergence and conflict between interpretations of the most fundamental constitutional principles on the one side and an emerging and increasingly secure understanding of the brain and its illnesses on the other side. Conflict is the necessary result of such an

interaction. As stated earlier, we see empirical research as a means to reduce the conflict and arrive at both rational legal change and optimal provision of forensic mental health services.

This chapter has described our work in relation to insanity acquittees and those civilly committed patients who refuse treatment. Rather than episodic, our research in these areas is continuous, based on large data bases that are maintained and periodically updated. We believe that epi- sodic research is often dated before it appears in print, especially in an arena characterized by continuous change. Thus, the snapshot research project pays fewer dividends than does continuous monitoring of these sys tems.

Finally, this type of research is not possible without commitment by public agencies-in this case the PSRB and the Mental Health Division- to develop and maintain operational data systems and provide access to the information necessary for researchers to develop and maintain such data systems. Given the availability of such data systems, however rudi- mentary, longitudinal research data bases can be maintained with min- imal costs. With periodic infusion of enhanced research funding, great dividends can be obtained from these projects.

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Mary H . Williams is instructor in the Department of Psychiatry, Oregon Health Sciences University, and researcher, Western Mental Health Research Center.

Joseph D. Bloom is professor and chair, Department of Psychiatry, Oregon Health Sciences University.