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Commitment Rule Is Key To Changing The System
Interpretation of Criteria Varies Among Counties

By Tom Jackman
Washington Post Staff Writer
Wednesday, November 28, 2007

The Fairfax County teenager was candid with the social worker: When he was in jail two weeks earlier, he'd been hallucinating and thought people were turning into zombies.

The 18-year-old, who also had escaped from a mental clinic, said that he believed in aliens from outer space but that he didn't think they were probing his mind. And he was joking and cooperative, the social worker wrote in an internal report. He planned to go to college and look for a job.

So, the social worker decided, the young man was not an "imminent danger to himself or others," and he was released.

Three days later, Michael Kennedy gathered seven guns from his home in Centreville, hijacked a van, drove to a nearby county police station and fatally shot two veteran officers before police killed him.

As Virginia wrestles with how to fix its mental health system after the massacre at Virginia Tech in April, one of the most crucial issues facing legislators and Gov. Timothy M. Kaine (D) comes down to those two words: "imminent danger." Judges and magistrates cannot order people into a treatment facility unless they meet this standard. Virginia is one of only five states that have such a high bar for commitment. Maryland abandoned the standard after tragedies there in 2002, and the District has a lower bar.

But when a psychologist examined Seung Hui Cho in 2005, it was determined that Cho did not meet the imminent danger standard. So he was never committed, and he never received treatment. On April 16, Cho killed 32 people and himself at Tech, bringing unprecedented scrutiny to the state's fractured mental health system.

A special subcommittee of the Courts of Justice Committee in the House of Delegates will begin assessing and drafting legislation on the standard. Kaine and lawmakers in both parties have said they expect the issue to be a priority for the General Assembly in January. But as the Kennedy case shows, the high standard was an issue well before the Tech massacre. The state Supreme Court convened a mental health commission last year, with a task force focused specifically on the imminent danger standard. The commission's report is due soon.

The problem is that imminent danger is "a vague term that's inconsistently applied and overly restrictive," said Bruce J. Cohen, a psychiatrist at the University of Virginia who is on the Supreme Court task force. "Most states have gotten rid of it."

Virginia law does not define exactly what "imminent danger" means, and statistics supplied by local jurisdictions indicate that the standard is applied differently from county to county in the approximately 14,000 cases heard annually statewide. That means that a person might be committed in one county but freed in another.

"Make it easier to get help for mentally ill people before they hurt themselves or others," said a Reston man whose son has been in and out of the mental health system for years and spoke on condition of anonymity to protect his privacy. "We just need a lower threshold to get help for people."

Legal Standards

Virginia law says that for a person to be involuntarily committed to a mental hospital, he must present "an imminent danger to himself or others as a result of mental illness" or be "so seriously mentally ill as to be substantially unable to care for himself." The standard is used in civil commitment hearings, usually held in hospitals, at which a family member or mental health professional asks a special justice to order someone into psychiatric treatment against his will.

Families and experts say the rulings in those hearings set precedents throughout the counties in which they're held, creating a standard that emergency room doctors, social workers, psychologists and others try to anticipate. In Fairfax, families say the special justices are particularly rigorous in applying the imminent danger standard, and statistics show they dismiss more than half the cases they hear, a far higher rate than in much of the rest of Virginia.

In contrast with Fairfax, Alexandria and Arlington County dismiss about a third of their commitment cases. In Richmond, less than 6 percent of cases were dismissed in fiscal 2006-07, and 94 percent were ordered into treatment. Norfolk orders about 80 percent into treatment. The statistics in Prince William and Loudoun counties are similar to those in Fairfax.

The Reston man who advocates eliminating the standard called for help recently after his son obsessed that federal authorities were eavesdropping on him. He destroyed a toilet and punched holes in the wall. Fairfax's Mobile Crisis Unit came to their home and "agreed that he was very disturbed," the man said. "But in their judgment, what he was saying and doing would not pass the threshold for imminent danger. And having sat through these hearings before, I had to agree with them."

A few weeks later, with what his father described as "a crazed look in his eyes," the young man attacked his father. The father called police, and the son was arrested. He is being treated in a mental hospital while awaiting trial on an assault charge. It took the criminal charge to get the young man held.

"Ideally, when we see terrible things happening," the father said, "we should have been able, before that point was reached, to say, 'This kid is in danger and needs to be treated.' We just couldn't get past that threshold."

Until 2003, Maryland required a "clear and imminent danger" to get an emergency psychiatric evaluation. Two events involving mentally ill people, including the shooting of two Prince George's County sheriff's deputies in 2002, helped persuade the legislature to delete the words "clear and imminent."

Under the District's legal standard, someone must be mentally ill and "likely to injure himself or others," which some advocates think is too tough.

There's hardly unanimity on the issue in Virginia. And the future of "imminent danger," and whether more people are forced into treatment, might hinge on whether a coalition of libertarians and former mental health patients can successfully fight to preserve the standard as the proper test to decide how to handle a mentally ill person who doesn't want help.

"I would make the standard higher than what it is," said Alison Hymes, who is on the task force examining the commitment process. "I think we're having too many people committed in Virginia, people who are committed who are not a danger to anyone."

"In most places, the hearing is a joke, kind of like Cho's hearing," she said, referring to the commitment hearing in December 2005 for Cho, the Tech gunman.

After Cho was temporarily detained overnight in a mental hospital for expressing suicidal thoughts and possibly stalking female students, he was examined briefly by a psychologist. At his commitment hearing the next day, neither the psychologist nor the police officer who detained him appeared. The attorney for Cho, theoretically fighting for his client's freedom, instead read the allegations against him into the record.

Defenders of the process say, however, that after a doctor determined that Cho was not mentally ill or an imminent danger, the special justice ordered Cho into outpatient treatment. Most special justices would have dismissed the case without a hearing once a doctor found no illness or danger, experts said, but the special justice in Cho's case sought help for him. But Cho did not follow through, and the local Community Services Board did not check to see whether he had.

"I feel that we've had a very emotional reaction to the tragedy at Virginia Tech," Hymes said. "This is being used in an emotional way, and we're getting bad law. I think they're going to erode our civil rights."

The imminent danger standard arose in several states in response to the previous governmental practice of building large asylums and then dumping the mentally ill there without due process or adequate resources. As squalid conditions and sordid practices were uncovered in the 1950s, the pendulum swung toward patients' rights: Hundreds of thousands were "deinstitutionalized," or released from the asylums, and new legal standards -- "imminent danger" in many states -- were installed.

In 1955, 558,239 patients were in public psychiatric hospitals. By the mid-1990s, the number had dropped to fewer than 72,000. By 2002, the total had fallen below 50,000.

But the same states that implemented the imminent danger standards rejected them over the past decade, most often because of incidents that involved the mentally ill.

Because of the Tech massacre, Virginia is going through that process.

Seeking a 'Model'

Experts agree that there has been no uniform approach to the commitment standard among counties. "There's no case law on this," said George W. Dodge, for 19 years a special justice in Arlington. "There's no power; there's no codification of anybody's role. That's how barren the whole state is." He said the Supreme Court panel "has a wonderful opportunity to create a constructive model in dealing with the mentally ill."

Because there is no uniform standard, someone can manipulate the system. The 21-year-old son of another Reston man is an example of such people. The son "knows that when he wants to be admitted to a facility," the man said, "he simply states he has thoughts of committing suicide. Unfortunately, he rarely wants to be committed, and he simply states that he does not want to kill himself or others and that he is not hearing voices."

The man said his son "can be in a serious mental psychosis, but he seems to always have the ability to control his mental problems if someone is asking 'a few questions.' Especially when the 'wrong' answers to those questions will have him committed."

The result, in many counties, is that jails have become the country's repositories for mentally ill people and that police constantly encounter people who need treatment but often must commit a crime to get it.

"To use the criminal justice system to get the person into treatment, it's not fair to the county, it's not fair to the person, and it's not fair to the officer," Fairfax Maj. Thomas Ryan said. "They have to get that person off the street. They're clearly a crime victim waiting to happen. The only way the system says we can assist that person is to arrest them. That's absurd."

It appears likely that Virginia will revise its standard. The task force on commitment, headed by Fairfax lawyer and special justice Mark Bodner, has been considering suggested changes to imminent danger. Cohen, the U-Va. professor and task force member, said proposed wording such as "a substantial likelihood that in the near future" a person might cause "serious physical harm" to himself or others is probably going to be suggested to the General Assembly when the commission issues its report.

"We're trying to tighten the criteria with regard to 'serious physical harm,' " Cohen said, "but broaden the issue and loosen the time frame requirements."

Staff writer Chris L. Jenkins contributed to this report.

Virginia is going through an unprecedented examination of its mental health system after the slayings at Virginia Tech in April. This is the first of an occasional series of reports about problems in the system.

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