Judge orders state hospital to take more competency restoration patients

This blog has long criticized the state's de facto use of county jails as mental health wards, and particularly Texas' failure to provide timely "competency restoration" services when a defendant is deemed incompetent to stand trial. In many cases, particularly for misdemeanants, defendants in the past have ended up incarcerated longer waiting for a spot in a state hospital than they would if they'd been allowed to plead guilty and served their full sentence. The problem reached a boiling point in Travis County last week, reports the Austin Statesman's Chuck Lindell in today's Austin Statesman ("Judge: Mentally ill patients wait too long for treatment"). The story opens:

An Austin judge ordered five Travis County prisoners into treatment at the Austin State Hospital last Tuesday an act of frustration that, if repeated, could provoke a confrontation over the state's underfunded and strained mental health system.

The three men and two women had been ruled incompetent to stand trial because mental health problems left them unable to understand the legal issues involved or assist in their defense.

Charged only with misdemeanors related to family violence or trespassing, the five had been waiting up to 71 days for a bed to open at the Austin State Hospital, where they would receive treatment — typically drugs and therapy — designed to restore mental competence so a trial could be held.

County Court-at-Law Judge Nancy Hohengarten worried that the long wait could jeopardize the prisoners' due process rights, the constitutional guarantee of fair treatment in the justice system.

So she ordered them to be immediately taken to the Austin State Hospital, and within 24 hours, all were admitted.

Problem solved?

No. The hospital, which serves 38 counties, still had 34 felony and misdemeanor defendants on a waiting list for competency treatment as of Friday, including 21 from Travis County, the state health department said.

Another 21 prisoners who have been ruled mentally incompetent were awaiting beds in other state-run facilities that offer specialized care, such as maximum-security settings — including one who's been waiting 257 days and four still waiting after 109 to 180 days.

But as Travis County acted to lessen the pressure on its jails and correct a potential constitutional violation, last week's order raised the pressure on the Austin State Hospital, where the demand for beds has long exceeded the supply.

Half of state hospital beds are designated as "forensic" beds for competency restoration and the other half are used for mentally ill folk who seek treatment in emergency rooms. The Department of State Health Services told Lindell that when courts order them to take someone, they will comply, but "Emergency room patients next on the list to get a bed will now have to wait longer or find psychiatric services elsewhere." According to DSHS, "People committed to the Austin hospital for emergency care typically stabilize and are released in seven to 10 days," while "Restoring a defendant to competency averages 35 days."

Austin attorney Keith Hampton is pushing for more such court orders, telling Lindell, "To be incompetent to stand trial, your mental disability has to be real severe. But when I saw people in jail over 100 days, I just went, 'This is it; enough is enough.' ... Maybe this will make leaving disabled people in jail a very rare occurrence instead of a common one." Hampton has promised to share his legal briefs on the topic with any other attorney statewide with a client in a similar circumstance. Bully for him.

This development in a sense may be an outgrowth of Travis County creating a specialized mental health docket run by Judge Hohengarten. She told the paper that displacing emergency patients weighs heavily on her, but "It is not appropriate to treat them in jail. It's a liability for local counties, and it can be inhumane. It certainly is not a proper way to deal with mental illness." That's very true, but the same thing has been happening for many, many years. Perhaps consolidating all the cases in one county under a single judge surely helped clarify the issue and crystalize what exactly the judiciary can do about it when waiting lists for state hospital beds grow to untenable levels.

There's another aspect to the story I don't quite understand. Hampton

is pushing Travis County judges to put time limits on their orders that declare a defendant mentally incompetent to stand trial.

The strategy works well for Williamson County, where incompetency rulings frequently include a 14-day time limit for defendants to receive mental health treatment, District Judge Billy Ray Stubblefield said.

Hohengarten said she is contemplating a time limit as well — something between a week and 21 days.

Some misdemeanor cases, she noted, have been dismissed because a defendant's time in jail and the state hospital equaled the maximum possible sentence.

"It is not out of the ordinary to have people waiting for unreasonable amounts of time," Hohengarten said. "This has been going on for years."

I'm not sure I see how setting a short time limit would work given long state waiting lists for competency restoration beds, or for that matter how it would be any different from what Hohengarten is now doing much later in the process. What happens if the state fails to accept clients within 14 days, one wonders? Do judges order the state hospital to take them, as Hohengarten has, and doesn't that create the same displacement of emergency beds feared from her recent orders? It's hard to tell from the story how that works.

Legislation approved earlier this year (HB 2725 by Hartnett) ordered judges to count time on the waiting list for restoration services against the ultimate sentence, making it easier to get charges dismissed when time incarcerated reaches sentence length. The bill capped total incarceration time — including both in jail and the state hospital - at the maximum sentence for the alleged offense. As Grits wrote of the legislation this spring, "HB 2725 gives jails a release valve on the back end for less serious cases, but it doesn't resolve the underlying failure of the state to find the right mix of incarceration/institutionalization/community supervision, nor address mental illness in any but the most reactionary way, lurching from short-term crisis to crisis without an overall guiding vision for how all the pieces are supposed to work together. Such discussions, regrettably, are far from today's legislative debate."

Indeed, because the main need is more resources and the state's leadership has long been allergic to new taxes, Texas' political leadership appears utterly incapable of approving more than band-aid fixes to this problem, meaning it's up to judges like Hohengarten to push the envelope until the legislative branch actually addresses it.

County jails and state prisons have become the de facto mental health system in Texas already. This trend, if it continues to its natural conclusion - where forensic beds predominate in state hospitals - would just make it official that the only way to get treatment for serious mental health problems is to commit a crime. The issue has been neglected by state leaders for way too long, and despite dubious assurances by officials in the story that "help is on the way," there's no indication the problem will abate anytime soon without further judicial intervention.

See prior, related Grits posts:

• Competency restoration process sounds crazy to columnist
• Few bills proposed at Lege to remedy statewide crisis in competency restoration
• Harris County pleads case for mental health, probation/diversion funds in state budget
• Jail deaths implicate state oversight, competency restoration funding
• Mental health cuts by state would shift costs to local jails, emergency rooms
• 'Harris County jail not the place to treat mental illness'
• The making of an unfunded mandate: Cuts to mental health would dump costs on county jails
• Cuts to state mental hospitals would be massive unfunded mandate for county jails
• Mentally ill languish in Bexar jail awaiting assessment, competency restoration
• Cuts to state mental health treatment would shift costs to local jails
• Cutting state psych hospital budgets could backfire
• Legislature's underspending on competency restoration beds creates havoc
• Priorities: Mentally incompetent inmates languishing in Texas county jails
• 75-year old mentally incompetent grandmother stranded in Lufkin jail most of 2006
• 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