Outpatient centers better solution than jails for competency restoration

Four new pilot programs providing outpatient competency restoration services have significantly reduced the number of mentally ill inmates languishing in county jails waiting for state hospital beds to open up, according to a handout from the Department of State Health Services (pdf) distributed last week to a conference sponsored by the Texas Task Force on Indigent Defense.

This is a great idea because there's no real public safety benefit and a lot of extra expense to insisting competency restoration services be delivered in a carceral setting. For some defendants, sure, but not indiscriminately for everyone. Here's how the DSHS flyer described the new pilots:

The Outpatient Competency Restoration (OCR) pilots were launched by Department of State Health Services (DSHS) earlier this year in response to Senate Bill 867, 80th Legislature which amended Article 46B, Code of Criminal Procedure, in many respects to explicitly allow for outpatient competency restoration of defendants who have been determined by the court not to be a danger to others (see CCP, Art. 46B.072(a) ). Funding was awarded for pilot sites for OCR in selected areas where the Mental Health Authority and local judiciary have partriered together for this unique concept in competency restoration. OCR programming and curricula were modeled after successful OCR programs in other states.

Harris County was the first to do outpatient competency restoration, and now these pilots cover the other major metropolitan areas. The four sites are:

• Austin Travis County MHMR (Travis)
• Center for Health Care Services, San Antonio (Bexar)
• North'Texas Behavioral Health Authority, Dallas (Dallas)
• Tarrant County MHMR, Fort Worth (Tarrant)

These outpatient programs are not in secure settings and are suitable when the court believes the defendant won't be a danger. Jeannette Kinard, head of Travis County's Mental Health Public Defender unit, said the Travis County outpatient is available to both felons (except violent, "3g" offienders) and misdemeanants.

The need for these new programs arises because once a defendant is declared incompetent to stand trial, their case cannot be resolved, even if it's a petty misdemeanor, until their mental state improves. Defendants could sit in jail for months waiting for a state hospital bed, legally unable even to plead guilty to minor charges that would otherwise get them out immediately for time served.

The bulk of volume of court commitments to state hospitals comes from these larger jurisdictions, so they're a great place to start, but really there needs to be outpatient competency restoration provided through MHMR Centers statewide. Managing a mentally ill inmate whose case cannot be disposed can be an even greater problem in smaller, rural jurisdictions whose jail and staff are likely not trained or equipped to handle them. For that matter, defendants frequently "de-compensate" in jail after they've been in the state hospital, which requires even more time before a court can dispose of the case. That's a lot less likely in a supervised outpatient program because they don't have the dramatic shift from the hospital to the jail cell and can schedule the court date when the defendant is stable.

Before the 80th Legislature allowed the outpatient option, the only way to get the needed mental health treatment for competency restoration was to send defendants to one of Texas' state mental hospitals. But Texas quit building new hospitals and since 2003 has underinvested in the ones we have as well as in indigent mental health care generally.

By 2006, the waiting list was many months long and defendants had to wait in jail the whole time, even for petty misdemeanors. There was literally no legal option for them, so Advocacy Inc.'s Beth Mitchell sued on behalf of a man who was beaten by other inmates while waiting in jail for a state hospital bed to open up. It was that litigation more than anything that spurred DSHS' new strategy.

The Lege authorized outpatient competency restoration in 2007, but did not agree to pay for new state hospital beds, making outpatient competency restoration the only remaining option to what was clearly an untenable situation. No funding was designated for the task, however, and counties were slow to step up. Only Harris County MHMR - to their great credit - took it upon themselves to immediately begin providing competency restoration services. Mitchell told the indigent defense conference they're already seeing great results, with recidivism declining for those receiving outpatient competency restoration compared to those treated in jail or a state hospital.

Given that history, DSHS deserves kudos for creating these new programs to fill the gap, helping solve their own problem (state hospital waiting lists) and the jails' at the same time. According to their handout, the pilots will divert 427 people from state hospital beds in 2009 now that they're all up and running at full capacity. That's a good start, but I'll bet if they were funded for it they could handle more volume - certainly some people need full-blown hospitalization, but probably the majority do not.

The waiting list to get incompetent defendants into Austin State Hospital was not long ago many months long, but thanks to the outpatient diversion, the wait is down to 7-10 days, according to a Sergeant from the Travis County Sheriff's Crisis Intervention Team. Violent offenders who require competency restoration must go to the state facility in Vernon, he said, for which the waiting list is currently 20-23 days - still too long, perhaps, but a far cry from the months-long waits that were routine just a couple of years ago. (For those offenders, I still think in the long run the state will still have to pay for more beds.)

In the meantime, I'd like to see the 81st Legislature take the "pilot" label off these competency restoration programs and fund their expansion in other jurisdictions. DSHS, with a little added motivation from Advocacy Inc.'s lawsuit, has latched onto what I think is exactly the right solution to a lingering problem that's still creating headaches for a lot of jails around the state.

See the DSHS flyer (pdf) and prior, related Grits posts:

• Lawsuit moves forward to require quicker competency restoration
  
• Legislature's underspending on competency restoration beds creates havoc
  
• Competency restoration legislation moving, funding for new forensic beds in jeopardy
  
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
  
• Lawsuit could force Texas to treat mentally incompetent defendants
  
• Legislature should prioritize mental health funding that relieves local jails
• Chincy state hospital funding leaves mentally incompetent defendants stranded
• Unfunded mandate: Counties struggle to pay for mentally incompetent defendants' care
• More counties grumbling at backlog of incompetent defendants in county jails
• When I was sick, did you imprison me?
  
• MH funding not enough, but better than a sharp stick in the eye