A Radical New Approach for Mental Health Diversion

Benefits of EDCOT

As envisioned by its creators, the passage of a state law, creating a new form of civil commitment, is required for EDCOT. Although this will not guarantee uniform implementation across jurisdictions within the state (the history of other civil commitment laws such as conservatorship and AOT proves that), it will increase the ease of introducing it, as individual jurisdictions will not have to “reinvent the wheel” when they decide to make a push for diversion. The standardization of the diversion regime will also facilitate data collection and analysis, enhancing the ability to fine tune the decision-making process in terms of suitable candidates and appropriate treatment resources and monitoring.

There is a consensus that America's CST system is in crisis.^5,–,9 Hoge and Bonnie point out that as referrals have increased drastically, delays prior to CST evaluation or while waiting for transfer to a forensic hospital for restoration have increased apace; state CST systems have been unable to keep up with resource allocation. Many states have been subject to lawsuits demanding a shortening of the time frame for restoration.

Among the problems within the competency restoration domain is the inappropriate use of CST referrals by attorneys and judges as an expedient way to obtain treatment for the defendant. Securing treatment for people with serious mental illness who become involved with the criminal justice system can be quite difficult, especially given that they often have fewer social supports, as well as comorbid substance use disorders. Well-meaning public defenders, prosecutors, and judges are typically unfamiliar with the nuances of CST and may believe that referral for competency evaluation is likely to provide a significant benefit to the individual with serious mental illness in terms of long-term treatment, housing assistance, and so forth. The reality, as Hoge and Bonnie note, is that the CST system has a narrow focus; it is not designed to provide long-term treatment planning. Thus, its use in less serious criminal cases, or when the patient is already close to achieving competency, often proves counterproductive, as defendants end up waiting in jail for long periods, while typically not receiving robust services once their criminal proceedings and sentence ultimately conclude.

The EDCOT system completely bypasses CST, as trial competence is not required for a defendant to be mandated to receive diversion and treatment. In addition to drastically shortening the entire timeline from arrest to exit from the criminal justice system, the savings in terms of money, hospital beds and staffing resources EDCOT would generate by avoiding CST proceedings would clearly be quite substantial, given the known costs of state CST regimes. In fact, Hoge and Bonnie indicate that these savings are what would allow EDCOT to be financially viable as a long-term proposition. An additional significant benefit is that EDCOT ensures longer-term treatment, which the CST process typically does not.

A court-mandated outpatient schema already exists in most states: AOT. Hoge and Bonnie point out that such programs are most likely to be successful when sustained for at least 18 months. Most AOT programs only mandate treatment for six or 12 months, though this may be renewed if the patient has remained in treatment and still meets the criteria for involuntary outpatient commitment. The proposal for EDCOT envisions a maximum of 12 months for misdemeanor defendants, and longer for felonies, with three years being suggested as a reasonable norm, but potentially allowing for a duration up to the maximum prison sentence that would have been faced if there had been a criminal conviction in the case. Note that this would not be indeterminate, as the EDCOT proposal is not intended for defendants facing very serious felony charges. Hoge and Bonnie specifically mention murder and armed robbery, but it is safe to assume that defendants with other serious charges such as attempted murder, kidnapping or rape, which could lead to sentences counted in decades (or a life term) would also be excluded from consideration.

In any case, as Hoge and Bonnie describe, the monitoring and sanctions of outpatient treatment under EDCOT would be tailored to maximize treatment compliance, without going so far as to mimic, for example, conditional release for an insanity acquittee, where return to a secure state hospital setting is common even for minor violations. EDCOT will resemble other types of mental health diversion programs, and differ from traditional civil AOT programs, in having brief incarceration in jail available as a corrective measure for noncompliance. Close monitoring through court reports at regular intervals and the threat of possible incarceration together are likely to increase rates of retention in treatment.

Challenges to Implementation of EDCOT

Hoge and Bonnie have developed a promising framework for a new approach to mental health diversion. They acknowledge that it is “a preliminary proposal intended to stimulate further discussion” and not a “finished product.” (Ref. 4, p 518) Given the worsening crisis of the criminalization of mental illness, a robust discussion among key stakeholders in one or many states would be an extremely welcome development. The current system is broken, and by many measures it is getting worse. Though EDCOT may seem drastic, even radical, there is a strong argument to be made that such a clear step forward, away from failing traditional approaches, is sorely needed. Certainly, we must hope that EDCOT will not meet the same fate as some previous proposals, such as the American Bar Association's 1986 recommendation for how to deal with defendants charged with serious violent felonies who were found incompetent to stand trial and unrestorable, which, as Hoge himself noted in 2010, has been essentially ignored throughout the nation.¹⁰ In anticipation of a sustained and serious dialogue about this proposal, it may be useful to point out some of the potential challenges to the adoption and implementation of EDCOT.

Barriers to EDCOT can be divided into the practical and the philosophical. The practical obstacles are those faced by any effort to create a new law or government program. Unlike many diversion programs, EDCOT requires passing laws. State legislatures tend to be quite slow and cautious when it comes to making significant changes to long-established codes. As Hoge and Bonnie have eloquently explained, EDCOT would have an impact on major facets of both criminal and mental health law. In addition to creating a new diversion pathway in criminal justice, it would dramatically affect the CST system and create a new civil commitment law. There are many moving parts and feedback loops. Clearly, it will take highly motivated state legislators, in addition to strong advocates in the mental health and legal fields, to shepherd an EDCOT law to final passage.

EDCOT would also require significant improvements in the outpatient and inpatient mental health resources available to diverted individuals. Thus, it will be critical that the savings EDCOT would generate from (for example) reductions in CST services not be spent by state governments on other priorities, leaving the public (nonforensic) mental health system no better off than it is at present. Without sufficient resources available to provide for successful diversions, EDCOT would not be sustainable.

On the philosophical side, there are stakeholders in the United States who oppose the concept of AOT.¹¹ EDCOT would create a new AOT-like system, and thus may encounter opposition from such stakeholders. A recent California bill would allow placement in AOT for patients who are on a mental health conservatorship that is being terminated. In response to the bill, the advocacy group Disability Rights California stated that it “opposes legislative efforts to expand involuntary mental health treatment to anyone who is not imminently dangerous to themselves or others, or gravely disabled.”¹² Of course, many states have AOT laws despite the opposition of such groups, so this is not necessarily an insurmountable barrier for EDCOT. But it should be taken into account, and steps should be taken to minimize opposition to EDCOT on liberty grounds.