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Legal Brief: Dying with Their Rights On: Mental Health and the Law

by JOAN KORB, [email protected]

By the mid-1850s, there was a growing movement to reform mental-health laws in the United States, opposing the housing of people with mental illness in facilities with criminals. 

An early leader of the movement was Dorothea Dix, a social reformer and mental-health advocate who established several hospitals, including St. Elizabeth’s in Washington, D.C., in 1855. It later housed John Hinckley Jr., who attempted to assassinate President Ronald Reagan in 1981 because of an obsession with actress Jody Foster.

Wisconsin took up the reform challenge early. In 1854, the commissioners of the Wisconsin State Lunatic Asylum authorized the construction of an institution that was never built. In 1857, the legislature authorized the site to become the home of the Wisconsin Hospital for the Insane, which opened in 1860 and is now known as the Mendota Mental Health Institute. Northern State Hospital for the Insane in Winnebago followed in 1873, and in 1881, the legislature allowed counties to establish asylums for chronically ill patients. By 1900, 32 counties had facilities with about 5,000 beds. 

Chapter 51, the Wisconsin Mental Health Act, was passed in 1947, and then amended in 1971, to put the responsibility for planning, providing and funding mental-health services for residents on counties, along with the financial responsibility for state hospital care. County hospitals became nursing homes to take advantage of Medicaid funds, and state hospitals became mental-health institutes with new responsibilities.

Wisconsin was a leader in the humane treatment of people with mental illness, but in 1972, a federal court declared Wisconsin’s civil commitment law unconstitutional. As a result, Chapter 51 was significantly revised in 1974 to add patient rights. Chapter 55, the Protective Services Law, was also created to address long-term incapacities including chronic mental illness, infirmities of aging and other developmental disabilities. 

The rewrite of Wisconsin’s civil commitment law had two main focuses: the treatment of patients in the least restrictive setting and the right to prompt and adequate treatment. Changes over time added a “fifth standard” for commitment that included revised standards for refusing medications. 

Courts have expanded rights over the decades to ensure that people with mental illness and people with disabilities are not institutionalized for years or even life without periodic court reviews. Unfortunately, many of these reforms have resulted in the institutionalization of people with mental illness in jails, prisons and state mental institutions because individual counties or states do not provide the necessary mental-health treatment to keep them safely within the community.

In 1967, then-Gov. Ronald Reagan of California signed a bill ending the practice of institutionalizing patients against their will, and other states followed. Ironically, in 1981, Reagan became the target of an assassination attempt by a mentally ill John Hinckley Jr. 

In 1983, the Reagan administration enacted a policy to cut off people with mental illness and severe emotional disturbances from supplemental security insurance, but a federal court later struck down the policy. Hinckley is scheduled for unconditional release from supervision in June 2022 after 40 years.

There has been a saying among some in the mental-health and law-enforcement fields that “people are dying with their rights on.” Groups such as the American Civil Liberties Union and some mental-health advocacy groups have fought to win protections against involuntary commitments and the involuntary use of medications. 

Unfortunately, with some of these hard-won rights have come deteriorating mental health – and too often death – for people with mental illness and innocent victims of those experiencing severe mental illness. Anti-treatment advocates often say that involuntary commitment should be limited to those who are deemed an imminent danger to themselves or others, but this determination often comes too late for the individuals and their victims. 

Along with the commission of homicides, suicides and other acts, allowing those with severe mental illness to go untreated results in overflowing prisons and jails, where they often receive little treatment or preparation for returning to life in the community. 

During the 1990s, prisons expanded, community mental-health services declined and homelessness grew. Lots of money was found to incarcerate the mentally ill while community mental-health budgets were decimated. Community safety meant punishing criminal conduct, not preventing crime through mental-health treatment. Families that had members with severe mental illness received little assistance, despite being able to petition for involuntary commitment for treatment with the assistance of the county corporation counsel.

The Wisconsin Legislature and the governor need to enact legislation that balances public safety and civil liberties. People with severe mental illness must be treated effectively before their illness progresses beyond recovery. The legislature must adequately fund the mental-health treatment it requires counties to provide, or many more individuals with mental illness and their victims will die with their rights intact.

Joan Korb is a former Door County district attorney and assistant district attorney. She lives in Egg Harbor.