National Alliance on Mental Illness
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II. Argument

1.Jails Have Become the Primary Health Care Provider for Persons With Mental Illness in the United States.

There has been a dramatic shift in mental health care over the last forty years. Whereas in the past, most individuals with serious mental illnesses resided and were treated at state mental hospitals, in recent years mentally ill individuals have become more likely to be treated for their illnesses in jail. Many attribute this shift to a process known as "deinstitutionalization."

Beginning in the 1960's, and continuing over the last several decades, there has been a mass closing of public mental hospitals. At the same time, there have been significant cuts in the budgets of those state hospitals remaining open. As a result, in approximately 40 years, the United States has reduced its number of state in-patient hospital beds from 339 per 100,000 persons to 29 per 100,000 persons. H. Richard Lamb, M.D. & Linda E. Weinberger, Ph.D., Persons With Severe Mental Illness in Jails and Prisons: A Review, 49(4) Psychiatric Services 483, 486 (Apr. 1998).

Due to the dramatic decline in the number of in-patient beds available in state mental health facilities, states have accelerated the discharge of large numbers of severely and persistently mentally ill persons from public mental hospitals. Gerald N. Grob, The Mad Among Us: A History of the Care of America's Mentally Ill 287 (1994). Whereas in the years before 1965, many patients spent years, if not decades, in asylums, after 1970, the length of stays began to be measured in days or weeks. Id. The numbers are striking: in 1955 there were 559,000 patients in state institutions; today that number has dropped to 72,000. Lamb, supra at 486.

This process of deinstitutionalization was not intended to result in the end of treatment of the mentally ill. When deinstitutionalization began in the 1960s, new antipsychotic drugs had begun to make medicating patients on an out-patient basis a viable, less expensive and sometimes therapeutically preferable alternative to long-term hospitalization. It was believed that after their discharge the mentally ill would receive care, treatment and follow-up services while living in the community. The concept of deinstitutionalization contemplated the replacement of hospitals with a comprehensive network of out-patient clinics, residential programs, supported employment and other necessary services. See, e.g., U.S. Department of Health and Human Services, Mental Health: A Report of The Surgeon General 79 (1999) (hereinafter "Surgeon General Report"); E. Fuller Torrey, et al., Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals 52-53 (1992).

Unfortunately, due to inadequate funding and development, the community based services were unable to provide adequate care for a large portion of mentally ill individuals. See id. Even as New York has increased funding for community-based services and supports, people with mental illness are frequently unable to access community-based services on their own. This has left large numbers of mentally ill individuals without any treatment for their symptoms. As a result, today many mentally ill people are being arrested and incarcerated for criminal behavior that most likely never would have occurred if these individuals were properly cared for in the community. See, e.g., R. 272-79; Lamb, supra at 486; Winerip, supra at 46; David Michaels, Ph.D., et al., Homelessness and Indicators of Mental Illness Among Inmates in New York City's Correctional System, 43(2) Hospital and Community Psychiatry 150, 154 (Feb. 1992).

In addition, some people with serious and persistent mental illnesses are arrested and jailed on misdemeanors or even no charges at all ?? in so called "mercy bookings." See, e.g., Torrey, supra at 44-46 (29% of respondent jails admitted that they sometimes hold people with mental illnesses without charges). In those circumstances, "jails are merely being used as substitutes for psychiatric hospitals." Id. at 45. In New York City in particular, the recent crackdown on "quality of life" crimes has resulted in more people with mental illness than ever being jailed for misdemeanors that were previously virtually ignored by the police. See Patricia G. Barnes, Safer Streets at What Cost?, 84 A.B.A.J. 24, 24 (1998). As a result of these "junk arrests" of homeless people with mental illness, New York City "has turned prisons and jails into a catchment for mentally ill people who get into trouble." R. 274.

2.Mental Illnesses Can Be Successfully Treated.

The goals of deinstitutionalization were not unrealistic. In fact, due to significant breakthroughs in the last few decades, including the introduction of safe and effective psychotropic medications, new advances in treating co-occurring mental illness and substance abuse, and the development of comprehensive community services, the vast majority of people with mental illnesses can live successfully in the community. See R. 30.

As the U.S. Surgeon General has reported, "for most mental disorders, there is generally not just one but a range of treatments of proven efficacy." Surgeon General Report, at 65. In the past decade, there has been an outpouring of new medications for the treatment of mental illness. Id. at 68. Researchers have made significant achievements in developing effective therapeutic agents with fewer side effects, which are targeted to correct the biochemical alterations that accompany mental disorders. See id. at 68. In addition, researchers studying drugs for different purposes have found certain medications to be useful for treating mental disorders. This has led to the availability of medications such as chlorpromazine (for psychosis), lithium (for bipolar disorder), and imipramine (for depression). Id.

In addition to psychotropic medication, individuals with mood disorders, anxiety disorders, schizophrenia, and personality disorders can be successfully treated with various types of psychotherapy, which work primarily through the exchange of verbal communication. Surgeon General Report, at 65. In some circumstances, the combination of pharmacological and psychosocial treatment ?? known as multimodal therapy ?? can be even more effective than each individually. Id.

There is also evidence that non-traditional voluntary out-patient treatment programs are successful in treating mental illness. In fact, some non-traditional approaches to treatment have been shown to reduce the rate of hospitalization to a greater extent than more traditional approaches. For example, the U.S. Surgeon General has recognized that psychosocial rehabilitation treatment, which involves work and social skills training, provision of affordable housing, and educating patients about their illness and medication, results in "fewer and shorter hospitalizations than . . . traditional outpatient treatment." Surgeon General Report at 287.

Traditional programs requiring individuals with serious and persistent mental illnesses to come to community mental health clinics at fixed times for weekly medication appointments and psychotherapy do not work as well as programs that are designed to respond more flexibly and comprehensively to the needs of individual service recipients. Assertive community treatment and continuous treatment programs utilizing multi-disciplinary teams to provide comprehensive services and supports to people with mental illnesses (many with co-occurring substance abuse disorders) have been highly successful in reducing jail recidivism, inpatient hospital stays, homelessness and other tragic outgrowths of lack of treatment. See, e.g., Jack E. Scott & Lisa B. Dixon, Assertive Community Treatment and Case Management for Schizophrenia, 21(4) Schizophrenia Bulletin 657, 664 (1995); Erik L. Goldman, Program Reduces Jail Recidivism for Mentally Ill, Clinical Psychiatry News, December 1996, at 26.

In addition, studies have shown that a self-help model of treatment can be also effective. In this model of treatment, a group of mental health patients defines its own goals and methods of treatment, making all major decisions. See Sally Zinman, Definition of Self-Help Groups, Reaching Across: Mental Health Clients Helping Each Other 1 (Sally Zinman et al., eds., 1987). The groups can take many forms: support groups, independent living programs, client-run housing, self-supporting businesses, and artistic groups. See id. at 11-12. Members of these self-help groups experience a dramatic decrease in the number and length of hospitalizations, as well as an increase in their abilities to cope with their illnesses. See, e.g., Marc Galanter, M.D., Zealous Self-Help Groups as Adjuncts to Psychiatric Treatment: A Study of Recovery, Inc., 145(10) Am. J. Psychiatry 1248 (Oct. 1998); Linda Farris Kurtz, D.P.A., Mutual Aid For Affective Disorders: The Manic Depressive and Depressive Association, 58(1) Amer. J. Orthopsychiatry 152, 153-54 (Jan. 1998).

As a result of this variety of available and effective forms of out-patient treatments, community based mental health care has not only become possible, it is frequently considered preferable to hospitalization. The "growing consensus within the mental health field [is] that, whenever feasible, people with mental illnesses should receive services in a community, rather than institutional setting." Opening Statement of A. Kathryn Power, Director, Rhode Island Department of Mental Health, Retardation and Hospitals, before U.S. Commission on Civil Rights, November 3, 1998. With the provision of appropriate treatment, including medication, coupled with intensive community services, people with schizophrenia or other serious and persistent mental illnesses are able to work, live independently, and otherwise function with dignity in the community. See, e.g., Deborah J. Allness, M.S.S.W. & William H. Knoeder, M.D., The PACT Model of Community-Based Treatment for Persons With Severe and Persistent Mental Illnesses 4-6 (May 1999); NAMI, Understanding Schizophrenia 8-9 (1994).

3.Discharge Planning Is an Essential Component of Mental Health Treatment.

"Discharge Planning" is the process of planning and arranging for a patient with mental illness to continue to receive an appropriate level of treatment after discharge from the care of his or her current mental health care provider. R. 29. This planning should begin as soon as treatment for a patient's mental illness has begun and should be tailored to each patient according to his or her illness, the scope of medical services provided to the inmate prior to and during incarceration, and the ability of the inmate to function on his or her own after discharge. R. 41, R. 703, R. 706.

The extent of discharge planning services that should be provided to an inmate with mental illness depends upon a variety of factors, including the inmate's diagnosis, the treatment being provided to the inmate prior to and during incarceration, and the ability of the inmate to obtain treatment and services on his own after release. R. 31.

Adequate discharge planning should include some or all of the following:
(1)providing the patient with a written discharge plan;
(2)providing the patient with a temporary supply of medication and renewal of prescriptions, if necessary;
(3)providing the patient with referrals and linkages to community mental health care providers; and
(4)assisting the patient in obtaining necessary financial benefits, housing, placements, and appropriate linkages.

See, e.g., R. 31-32, R. 129, R. 690, R.703-706; American Psychiatric Association, Psychiatric Services in Jails and Prisons 38-39, 46 (2d ed. 2000).

The provision of these services is crucial. Mental health professionals widely recognize that "timely and effective discharge planning is essential to continuity of care and an integral part of adequate mental health treatment." American Psychiatric Association, supra at 18. Discharge planning helps to ensure that mentally ill patients do not relapse or decompensate after their discharge from the care of their mental health provider. However, although defendants and mental health professionals agree that discharge planning is an essential element of proper mental health treatment (see R. 1242, R. 1353-54, R. 1497, R. 1705), almost all inmates with mental illness are released without even the most basic level of discharge planning. Instead, inmates with mental illnesses who have completed their sentence are typically dropped off along with all other inmates at Queens Plaza early in the morning with nothing more than $1.50 in cash and a two fare Metrocard. See R. 12, R. 308, R. 723. These inmates are returned to the community without appointments, medication, public benefits and very often housing. R. 12, R. 723. Without these crucial linkages to treatment and services, their chances of successful community reintegration are reduced, and their chances of becoming involved once again with the criminal justice system are significantly increased.

4.Without Effective Discharge Planning, Inmates with Mental Illnesses Will Be Unlikely to Receive Continued Treatment.

As a result of defendants' failure to provide discharge planning, when plaintiffs are released from the City Jails into the community, they are unlikely to continue their treatment with mental health care providers in the community. One 1992 survey estimated that only one-third of inmates with serious mental illness received continuing psychiatric services once they were released from jail. See Spencer P.M. Harrington, New Bedlam Jails ?? Not Psychiatric Hospitals ?? Now Care for the Indigent Mentally Ill, The Humanist, May/June 1999, at 9?13. Although New York City has a wide variety of community services available, as described below, there are several reasons why these inmates with mental illnesses cannot obtain care without assistance.

First, inmates with mental illness lose their Medicaid and other benefits when they are incarcerated and therefore cannot pay for treatment when they are released. A sample of inmates with serious mental illnesses in City Jails revealed that approximately 39% percent of these inmates had received SSI or SSD (social security disability benefits) before their arrest, 25% had received public assistance, and 16% had no income. Only 2% of these inmates had private health insurance, 63% relied on Medicaid, and 30% had no insurance at all.

These benefits are not automatically reinstated upon an inmate's release from jail. Inmates who have received public benefits before their arrest become ineligible for Medicaid and other forms of public assistance upon incarceration, and it typically takes at least 45 days to reactivate these benefits upon release. R. 32; see also R. 1881 (an individual may have to wait up to 89 days after release to receive Medicaid and other entitlements). Unless these inmates are provided a temporary supply of medication and assistance in reactivating their benefits, they will be unable to obtain medication for a significant period of time. Adequate discharge planning can assist inmates with their applications to minimize the delay in reactivating these benefits.

Second, many inmates are also homeless. Approximately 43% of the inmates with mental illnesses incarcerated on Rikers Island are homeless at the time of their arrest. See Daniel A. Martell, Ph.D., et al., Base Rate Estimates of Criminal Behavior by Homeless Mentally Ill Persons in New York City, 46(6) Psychiatric Services 596 (June 1995); see also R. 32. The lack of a home and a telephone makes it almost impossible for a patient to arrange and keep appointments with treatment providers. These patients need assistance in obtaining appropriate housing arrangements upon their release so that they can continue to receive their treatment in the community. R. 32-33.

Third, many inmates with mental illnesses also suffer from other illnesses and substance abuse disorders. For example:

  • 38% of all jail inmates have a history of alcohol dependence;
  • 85% of urban male detainees with severe lifetime mental disorder also have an alcohol disorder;
  • 58% of urban male detainees with severe lifetime mental disorder also have a drug disorder;
  • 85% of the City Jail population has a history of substance abuse (R. 238);
  • 7% percent of mentally ill men and 20% of mentally ill women test positive for HIV (R. 237); and
  • One in every six New Yorkers with tuberculosis has been in the New York State correctional system. (R. 237.)

These "co-morbidity factors" make inmates with mental illnesses more difficult to treat. These inmates frequently suffer from physical disabilities and require comprehensive integrated care. R. 33. Discharge planning needs to be provided to ensure that these patients receive appropriate referrals to substance abuse programs, medical care professionals and other community based treatment providers for a comprehensive, integrated treatment plan.

Fourth, the mental health treatment system is very complex and difficult to navigate, even for those individuals whose symptoms are not severe or are well controlled. People with serious and persistent mental illnesses frequently encounter long waiting lists, complex rules, unwilling providers, and other barriers to services. See Winerip, supra. Inmates frequently need assistance in making the transition from the structured jail environment to the community where they must obtain treatment, food and shelter on their own. R. 30. "It is generally not advisable for persons who have been hospitalized or incarcerated for a long time to be placed in the community in a living situation with little or no structure. Such individuals are frequently unable to cope with the immediate stress and demands of these arrangements, and they either decompensate or commit subsequent offenses." H. Richard Lamb, M.D., et al., Community Treatment of Severely Mentally Ill Offenders Under the Jurisdiction of the Criminal Justice System: A Review, 50(7) Psychological Services 907, 911 (July 1999). Individuals who are grappling with severe symptoms of schizophrenia, bipolar disorder or other major mental illnesses, may avoid the mental health system altogether if forced to navigate the often unwelcoming and stressful system without any assistance. The failure to provide these individuals with discharge planning and linkages to services increases the likelihood of homelessness and recurrence of the behaviors that led to their involvement with the criminal justice system in the first place.

Individuals with serious mental illness who have been arrested and spent time in jail or prison face many problems upon their release. Re-integration into the community will not be easy, but it will be nearly impossible if the individual has no source of income and no access to medical and mental health services including necessary medications. Individuals without benefits will not be able to afford housing, food or medications, causing them considerable distress and causing their mental health to deteriorate.

5.The Failure to Provide Discharge Treatment Can Result in Severe Consequences.

As described above, without discharge planning the treatment of many inmates with mental illnesses will abruptly terminate. This abrupt discontinuation of medication and therapy can have severe medical, emotional and financial consequences.

Approximately seventy to eighty percent of all inmates with mental illnesses need psychotropic medication to prevent the deterioration of their condition and to control their symptoms. R. 37. It is widely recognized that, for these medications to be effective, they must be taken continuously for long periods of time. Id. In schizophrenic patients, the stopping of medication is the most frequent cause of a relapse and a more severe and unstable course of illness. The Expert Consensus Guideline Series: Treatment of Schizophrenia, 60 Journal of Clinical Psychiatry 75 (Supp. 1999). As many as four out of five patients who stop taking their medication after a first episode of schizophrenia will suffer a relapse. Id. In contrast, maintaining medication following recovery from an acute episode of schizophrenia reduces the risk of relapse in the ensuing year by 60-70%. Michael McPhillips & Tom Sensky, Coercion, Adherence or Collaboration? Influences on Compliance with Medication, Outcome and Innovation in Psychological Treatment of Schizophrenia, Chapter 9 (T. Wykes, et al., eds. 1998); see also Delbert Robinson, M.D., Predictors of Relapse Following Response from a First Episode of Schizophrenia or Schizoaffective Disorder, 56 Arch. Gen. Psychiatry 241 (March 1999).

In addition to the return of the hallucinations, paranoia and psychotic thinking associated with an inmate's mental illness, the abrupt termination of medication can also result in physical withdrawal symptoms. "Many changes occur in the brain and the rest of the body after medications have been taken for a long time. In a sense, the body gets used to the drug and makes changes to accommodate it. If a drug is withdrawn too quickly, the body may not have enough time to prepare for the change and may, therefore, react in what seems a chaotic way . . . For example, . . . abruptly stopping the newer antidepressants-fluxetine (Prozac), sertraline (Zoloft), paroxetine (Paxil), [and] fluvoxamine (Luvox) . . . can produce dizziness, nausea and 'shocklike' sensations in the body." Jack M. Gorman, M.D., The Essential Guide to Psychiatric Drugs 41 (3d ed. 1997). Similarly, the abrupt withdrawal of diazepan (valium), a benzodiazepene used for the treatment of severe anxiety disorders, can cause symptoms such as convulsions, tremors, abdominal and muscle cramps, vomiting and sweating. The Physician's Desk Reference, 2527 (52d ed. 1998); see also R. 41.

As symptoms of the inmates' mental illness recur, many inmates will also face a higher risk of depression and suicide. R. 40-41. Fifteen percent of patients with affective disorders and between ten and fifteen percent of patients with schizophrenia commit suicide. Id.; see also Adina Wrobleski, Suicide: Why 55 (1989) (every year approximately ten percent of all persons committing suicide suffer from schizophrenia and another ten percent suffer from manic-depression).

Many inmates released without discharge planning also wind up back in jail. In a 1985 study in Columbus Ohio, 65 patients were followed after their release from state hospitals without discharge planning. Within six months, 32 percent of them had been arrested and jailed, almost all for misdemeanors. E. Fuller Torrey, et al., Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental Hospitals 54 (1992). In addition to the psychological trauma this recurring cycle of reincarceration causes inmates with mental illness, reincarceration also results in significant financial costs to the defendants and the community. See infra part III.6.

The failure to provide discharge planning also results in significant burdens on community service providers. In the absence of discharge planning, many homeless shelters have become the de facto "discharge plan" for thousands of released inmates with mental illness. See generally Martell, supra at 596-600; Carol L.M. Caton, Mental Health Service Use Among Homeless and Never Homeless Men With Schizophrenia, 46(11) Psychiatric Services 1139 (Nov. 1995). There currently exists no mechanism by which a community shelter is notified that a released inmate will be arriving, nor is any effort made to provide that shelter with information on the inmate's mental illness. As a result, when these inmates arrive at the shelter without a sufficient supply of their medication, they can disrupt the shelter and endanger themselves and other residents.

Similarly, the failure to provide discharge planning results in an enormous burden on hospitals. As discussed above (see supra part III.1.), many hospitals have significantly downsized their in-patient mental health facilities. For example, in 1953, there were 93,000 patients in New York's state mental hospitals; today that number is less than 6,000. Winerip, supra at 45. Hospitals no longer have sufficient specialized facilities to treat patients with mental illness. As a result, when released inmates suffer a relapse of their condition, many of them wind up in hospital emergency rooms. Treatment of the mentally ill in emergency rooms is not only more costly than community based treatment, it also results in the diversion of essential hospital resources from other emergency patients.

6.Defendants Are Able to Provide Adequate Discharge Planning to Inmates with Mental Illnesses.

Defendants do not claim that discharge planning is not an important component of mental health care. They do not because they cannot. Instead, they complain that because the inmate population is transient, there exists an "insurmountable barrier" to diagnosing and treating illnesses, and that the requested relief cannot be granted because some "inmates leav[e] the system before they are evaluated by mental health professionals." Def. Br. at 52. Defendants, however, are already identifying, evaluating and treating thousands of inmates with mental illness each year. See R. 238. In addition, the plaintiff class only includes those inmates whose period of confinement in City Jails last 24 hours or longer and who have received treatment during their confinement. The class specifically excludes those patients treated by mental health staff on no more than two occasions who are assessed on the latter occasion as having no need for further treatment.

Moreover, inmates with mental illness tend to be incarcerated four to five times longer than persons charged with similar offenses. American Psychiatric Association, supra, at xix, see also R. 301, R. 1426-27. And, a stay of only a few days is sufficient to develop an adequate discharge plan. The length of a psychiatric hospital stay is often no longer than a week, yet hospitals are able to ?? and routinely do ?? provide comprehensive discharge planning. See Supplemental Record (hereinafter "SR") 90-91 (discharge planning can be completed in a week for hospitalized patients).

Defendants also argue that because they cannot anticipate the release date of many inmates, they cannot provide "after the fact planning subsequent to release." Def. Br. at 53. However, discharge planning is not "after the fact" planning. Instead, it is widely recognized as a fundamental part of ongoing mental health treatment which should begin as soon as treatment begins. R. 41, R. 703, R. 706. Plaintiffs are simply asking defendants to take steps to ensure that the plaintiffs and the class are linked upon discharge with the treatment and services they need and frequently were already receiving while incarcerated. In any event, defendants have many resources at their disposal to assist them in predicting possible release dates of these inmates. For example, the Department of Corrections Inmate Information System contains information such as scheduled court dates that would facilitate discharge planning for pre-trial detainees. SR. 32-33.

Defendants complain that the requested relief will require "vast amounts of time and resources [to be] expended by both defendants and community-based providers in order to develop and implement an effective discharge plan." Def. Br. p. 54. However, the expense of time and/or resources cannot justify the failure to provide essential medical care. Moreover, there exists evidence to show that effective discharge planning would significantly reduce the reincarceration and rehospitalization rate among inmates with mental illnesses which would result in a significant savings of resources of the defendants and the community.

For example, in one study, a team of social workers and psychiatrists in Rochester, New York, followed the progress of 44 patients with a history of severe mental illness and repeated jail terms after their release from prisons or hospitals. Before entering the program, patients had spent an average of 104 days in jail (at a cost of $77 per day) and 114 days in hospitals (at a cost of $578 per day) at a combined cost of $73,000 per year. After receiving post-release medical and psychiatric treatment, clothing, food and housing through the program, these same patients spent an average of 45 days in jail and only 8 days in hospitals at a combined cost of $39,000 per year per patient. Tom Hackett, A Dead End for Inmates, New York Daily News, August 27, 2000, at 35.

In 1996, the average cost of incarcerating an individual in a New York City jail was approximately $63,000. See The State Municipal Services in the 1990s: New York City Department of Corrections (June 1997). This amount does not account for the costs associated with the individual's arrest and processing through the criminal justice system. In contrast, the cost of providing supportive housing to an individual in New York City is approximately $12,000 per year or $33 per day, considerably less than the costs of incarceration. Elizabeth Kolbert, Housing Hope of Mentally Ill is Fading Away, N.Y. Times, January 19, 1998, at B1.

Similarly, the costs of community based treatment is substantially less than in-patient hospitalized care. One study of the costs of treating 321 formerly institutionalized individuals with mental disabilities in the community found that community-based services cost less than one-half as much as institutional care. Aileen B. Rothbard, et al., Service Utilization and Cost of Community Care for Discharged State Hospital Patients: A Three Year Follow Up Study, 156 Am. J. of Psychiatry 920-27 (1999) (total treatment in the community, including the cost of housing, was $60,000 per person per year compared to $130,000 for institutional care); see also, Kolbert, supra at B1 (estimating an annual cost of $113,000 to house a patient in a psychiatric hospital).

The provision of discharge planning in jails is not infeasible. In fact, other correctional systems have already begun to implement discharge planning programs. For example, in Ohio, community linkage representatives meet with the inmates with mental illnesses before they are released and refer the inmates to an appropriate service providers in the community. R. 42. The Cook County Jail system in Illinois is also implementing an expanded discharge planning program for all released inmates with mental illnesses. SR. 75-77. Similarly, in Nassau County, inmates are provided prescriptions for medications and with referrals to community agencies and public assistance agencies to facilitate their applications for public benefits. R. 42.

By breaking the cycle of reincarceration, and conserving the resources that are necessarily expended by holding and treating these individuals in the City Jails, discharge planning not only benefits the inmates with mental illnesses, but defendants and the community as well.

7.Accepted Professional Standards of Mental Health Care Require That Adequate Discharge Planning Be Provided to Released Inmates.

Both the professional standards applicable to the field of psychiatry generally, as well as those developed in the specific context of jails and prisons, require that adequate discharge planning be provided to mentally ill persons before they are released or transferred from a certain provider's care.

a.Professional Standards Developed Specifically in the Jail Context Require that Discharge Planning be Provided to Inmates with Mental Illnesses.

As the number of incarcerated mentally ill persons exploded in recent years, professional groups such as the American Psychiatric Association (APA), the American Association for Correctional Psychologists (AACP), and the National Commission on Correctional Health Care (NCCHC), were faced with the following questions:

[W]ith upward of 700,000 men and women entering the U.S. criminal justice system each year with active symptoms of serious mental disorders, with 75% of these people having co-occurring substance abuse disorders, and with these persons likely to stay incarcerated four to five times longer than similarly charged persons without mental disorders, what are our duties and responsibilities? How do we live up to our personal moral principles, our professional ethics, and our public service obligations in the face of these overwhelming numbers?

American Psychiatric Association, Psychiatric Services in Jails and Prisons xix (2d ed. 2000). To address this question, these and other professional groups began to develop standards for the provision of psychological services to inmates in jails and prisons in order to establish the minimum acceptable levels for psychological services for such offenders. This process has resulted in a consensus among these professional groups that discharge planning is an essential element of appropriate mental health care for inmates. In promulgating their standards, these groups have uniformly recognized that discharge planning, which may include services such as pre-release assessment, referral to community-based programs and services, making arrangements with local mental health agencies for the renewal of medication, and providing assistance in obtaining financial benefits and housing, is essential to the professional and ethical treatment of incarcerated persons in need of mental health care.

1.Standards of the American Psychiatric Association.

According to the APA, "[t]he fundamental policy goal for correctional mental health care is to provide the same level of mental health services to each patient in the criminal justice process that should be available in the community." American Psychiatric Association, Psychiatric Services in Jails and Prisons, 6 (2d ed. 2000). In accordance with that goal, the APA's Task Force on Psychiatric Services in Jails and Prisons has recognized that "[t]imely and effective discharge planning is essential to continuity of care and an integral part of adequate mental health treatment." Id. at 18. It therefore includes discharge planning as one of the three core components of psychiatric services to be provided in jails and prisons, with the other two being (1) screening, referral and evaluation, and (2) treatment. Id. at 31, 32.

The APA lists among the "essential services" to be included in adequate discharge planning, that: (1) appointments should be arranged with mental health agencies for all inmates with serious mental illnesses, especially those receiving psychotropic medication; (2) arrangements should be made with local mental health agencies to have prescriptions renewed or evaluated for renewal; (3) the mental health treatment staff should ensure that discharge and referral responsibilities are carried out by specifically designated staff; (4) each inmate who has received mental health treatment should be assessed to determine appropriateness of a community referral; and (5) mental health staff should participate in the development of service contracts to ensure access to community-based case managers to provide continuity of service. Id. at 38-39, 46. In addition, adequate discharge planning may include help with the obtaining of necessary financial benefits and housing, placements, and appropriate linkages. Id. at 18.

Moreover, the APA has concluded that co-occurring mental illnesses and substance abuse disorders "require[] special attention to discharge planning." Id. at 51. For such disorders, "[d]ischarge planning is required and must address housing and job needs, family reconnection, and continued treatment." Id. (emphasis added).

2.Standards of the American Association for Correctional Psychology.

The standards promulgated by the AACP also include discharge planning as an "essential" component of appropriate mental health services. The AACP's standards, which provide the "minimum acceptable levels for psychological services for offenders," mandate that there be (1) a written, implemented procedure for the orderly discharge of inmate clients from psychological treatment, and (2) written, implemented policies and procedures that require psychological services personnel to ensure that provisions are made for appropriate postrelease follow-up care in the community. See American Association for Correctional Psychology, Standards for Psychological Services in Jails, Prisons, Correctional Facilities and Agencies, 27 Criminal Justice and Behavior 439, 476-77 (August 2000) (emphasis added). Moreover, a psychological practice or service in a correctional facility that does not comply with these standards "strongly implies an ethical or practice violation," which "could result in litigation with civil and/or criminal consequences." Id. at 440. The AACP explains that the mental health needs of offenders should result in a continuum of care and that services should not stop simply because the person is released from jail. Rather, when inmates who have a continuing need for psychological services are released to the community, "the treating psychologist . . . in collaboration with the social worker, shall ensure that follow-up treatment services are arranged as part of the individual's release plan." Id. at 477.

3.Standards of the National Commission on Correctional Health Care.

The standards promulgated by the National Commission on Correctional Health Care (NCCHC) also include discharge planning among the "minimum requirements for health services in prisons." See R. 700, 703. The NCCHC thus requires "continuity of care from admission to the prison through discharge from it, including referral to community resources when indicated." R. 703. Moreover, in its Position Statement on Continuity of Care, the NCCHC states that "[i]t should be the responsibility of each correctional institution and correctional system to establish policies providing for continuity of care as outlined throughout the NCCHC Standards for Health Services." R. 706. Regarding the principles to be incorporated into such a continuity-of-care program, the NCCHC believes that:

Prior to release, any inmate requiring continuing health care should be evaluated carefully as to post-release needs. An individualized pre-release health care plan should be developed for such an inmate. The health plan should be documented in the health care record and provided to the inmate. An appropriate outside health care provider . . . should be identified for the ongoing care of the inmate. Id.

4.Standards of the American Public Health Association.

The American Public Health Association (APHA) also includes discharge planning among its Standards for Health Services in Correctional Institutions. Specifically, the APHA standards require that, upon the release of an inmate who has been receiving mental health care, the correctional staff must create a discharge/transfer summary that "must include specific information for the patient in need of follow-up care with referral to appropriate health care providers." R. 690. In addition, "[i]nmates transferred or discharged from custody must be given a supply of essential medications that is sufficient for several days or until they may reasonably be expected to be able to obtain necessary community follow-up." Id.

5.Standards of the American Association of Community Psychiatrists.

The American Association of Community Psychiatrists recommends that, to "address the serious problem of the mentally ill behind bars," we must "[e]stablish vigorous programs designed to reintegrate inmates suffering from serious mental illness and dual diagnosis into the community following release," by, among other things, (1) creating links to community providers to allow transitional treatment planning and follow-up; (2) establishing case management services prior to and following release, with programmatic links between providers to assure continuity of care; and (3) providing available and affordable housing, especially supportive housing programs that do not discriminate against homeless individuals with criminal histories. Position Statement of the AACP on the Mentally Ill Behind Bars, AACP Newsletter, Vol. 13, No. 2 (American Association of Community Psychologists), Spring 1999, at 2-3.

b.Professional Standards Applicable to Psychiatry Generally.

On a broader scope, in the field of psychiatry as a whole, it is also uniformly recognized that adequate discharge planning is an essential component of appropriate mental health care. For example, a compilation of expert opinions regarding the proper treatment of schizophrenia emphasizes the importance of proper discharge planning. These guidelines note that "perhaps the most crucial aspect of discharge planning is ensuring that the patient does not fall through the cracks before the first outpatient appointment. The experts recommend scheduling the patient's first outpatient appointment within one week of discharge from the inpatient service." The Expert Consensus Guidelines Series: Treatment of Schizophrenia 1999, 60 Journal of Clinical Psychiatry 20 (Supp. 1999). The guidelines emphasize among the most important responsibilities for the discharging staff: (1) scheduling the first outpatient appointment within one week of discharge; (2) providing enough medications to last at least until the first outpatient appointment; and (3) providing an around the clock phone number to call for problems before the first outpatient appointment. Id.

The ethical standards governing psychiatrists and psychologists similarly require that they plan for the discharge of patients from their care. It is well established that physicians and psychologists may not ethically abandon a patient or client without providing for continuing care where it is needed. Thus, the American Psychological Association requires that:

(a)Psychologists do not abandon patients or clients; [and]
. . .
(c)Prior to termination [of the professional relationship] for whatever reason . . . the psychologist discusses the patient's or clients views and needs, provides appropriate pretermination counseling, suggests alternative service providers as appropriate, and takes other reasonable steps to facilitate transfer of responsibility to another provider if the patient or client needs one immediately.

American Psychological Association, Ethical Principles of Psychologists and Code of Conduct 4.09 (1992).


Considering this consensus among professionals in the field regarding the necessity of adequate discharge planning, there can be no dispute that defendants are professionally and ethically obligated to provide such services to plaintiffs.