August 19, 2011

The sad story of Theodoric James Jr. — the longtime White House records official and D.C. resident who died in squalor in late July — undoubtedly was shocking to many readers. But it wasn’t to the family and friends of mentally ill elderly people, and especially not to those whose job it is to try to help them.

It’s a serious flaw with existing law that government workers cannot intervene in the lives of adults like Mr. James who desperately need help but won’t give their consent. D.C. officials are permitted to act against the will of a mentally ill person only in limited circumstances. The D.C. Council should undertake changes in the Ervin Act, which has governed the involuntary commitment process since 1965.

There was a time when the District, with St. Elizabeths Hospital, was at the vanguard of mental health care in the United States. In the 1950s, St. Elizabeths housed 7,000 patients. Many 20th-century advances in psychiatry either originated or were developed at the hospital. But there were abuses in the commitment process, and people were unnecessarily hospitalized. Meanwhile, the development of psychiatric drugs allowed for the management of disorders that formerly could be treated only in a hospital. St. Elizabeths gradually emptied its wards. Today, there are only 150 inpatients there. Thousands of other D.C. residents suffering mental illness, for better or for worse, rely on community resources.

The Ervin Act was a product of a trend to deinstitutionalize patients as an end in itself. Under the law, a person could not be forced to receive treatment unless he or she was found not only mentally ill but also likely to hurt himself or someone else. Typically, only when a police officer or an employee of Adult Protective Services (the D.C. agency charged with investigating neglected elderly people) sees a person acting dangerously will he be taken into custody. When that happens, however, the purpose of the proceeding that follows is less to help the individual than to adjudicate his rights, even when it is obvious that the person is very sick. And a panoply of rights are bestowed under the Ervin Act — a probable-cause hearing before a judge, then a hearing before a judicial commission and finally a jury trial, a process that takes months. Consequently, government lawyers devote resources only to the most dangerous respondents.

Alternatively, the family may seek the appointment of a guardian with the authority to make medical decisions in an “intervention proceeding.” However, the law prevents guardians from consenting to involuntary hospitalization. The end result is that few mentally ill people are under court order to receive treatment in the District, and those who are usually are under an “outpatient commitment” (which requires family or friends to have the time to ensure that the patient is compliant). Getting a person committed as an inpatient for an extended period is next to impossible. More than once, when a client sought my advice for getting treatment for a loved one, all I could advise was to pray that the person acted dangerously in public so the police would take him in.

Another byproduct of the Ervin Act is that one often sees mentally ill homeless people who are not dangerous but are filthy, dressed inappropriately or ranting nonsensically around the city. One delusional man for whom I was appointed to serve as guardian was a former college football player who at one time had a professional job but now was unemployed and living with his mother, rarely leaving the house. For years, I tried to convince him to get help, and I hired professionals to talk to him. All of these efforts were unsuccessful, and because he was nonviolent and well-nourished, nothing could be done to get him to climb out of the box his disordered mind had placed him in.

This man and many others continue to live meaningless lives, despite the fact that intervention could be life-changing. And, as was seen in Mr. James’s case, the result of benign neglect can be deadly. In the name of civil liberties, we are killing people with kindness. We wouldn’t allow a child to live in the filth Mr. James was found in just because the child denied needing help. Nor should we allow an adult who clearly is impaired to do so.

This is not an inevitable situation. There is nothing to prevent amending the law to consider, from an objective standpoint, the quality of life of a person who needs help, rather than whether the person is a danger to himself or others. Hopefully, we have evolved as a culture to where we would not tolerate dumping people into institutions, and at any rate we no longer have the resources to do so. Until the D.C. Council modifies the Ervin Act, there will be others like Theodoric James Jr.

The writer is a Washington lawyer.