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Mind Benders

The debate over civil rights and public safety is just the beginning: Could a mental-health court have helped Cho Seung-Hui?

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When the media swarm turned its attention to the mental-health history of the Virginia Tech shooter, Richmonder Deborah Overton found herself reflecting on her own life.

The weekend after Cho Seung-Hui shot 32 people and then killed himself in Blacksburg, news reports began to emerge detailing his run-in with the state's mental-health system, which Overton knows well.

From 1983 to 1993 she was in and out of Central State Hospital in Dinwiddie County.

"I was one of those people who didn't want to take the medication, so I was just out there doing risky things, having risky behaviors," Overton says. "I was cyclical. I would have mania during the spring and depression in the winter, like clockwork."

Cho, of course, was less predictable.

"He was in a Catch-22," Overton says. "He needed the help and didn't want it."

It may never be known what, if any, mental illness afflicted Cho. But what is known — that in December 2005 he was involuntarily detained in a mental hospital overnight — is spurring a national debate about what went wrong, and whether mental-health professionals could have intervened earlier.

While advocates for the mentally ill are concerned the debate might result in new laws that dial back their clients' civil rights, the tragedy at Virginia Tech raises new questions about how to deal with people who need treatment but refuse it. It's a Catch-22 for policymakers, too.

Most states have laws ordering people with mental illnesses to go through some kind of outpatient treatment even if they don't want it — regulations that are likely to come under scrutiny in the coming year.

In Virginia, anyone can ask a magistrate to issue an emergency custody order if someone is considered an "imminent danger" to themselves or others because of a mental illness. A magistrate can issue an order, like an arrest warrant, even if the individual hasn't committed a crime, requiring the individual to undergo an evaluation by a mental-health professional.

A special justice ordered Cho in 2005 to seek outpatient treatment after a female student complained of inappropriate behavior, and an acquaintance told police he might be suicidal, according to news reports. But it doesn't appear that Cho sought the mental help as ordered, and under current law, there's no way to force someone to comply with outpatient treatment.

A bill proposed by State Senator Henry Marsh (D-Richmond) during this past session would have changed that law to give the courts the power to require a new hearing potentially revoking the outpatient order and sending them to the hospital. The bill died in committee.

That lack of enforcement in Cho's case has rekindled interest in a little-used tool for keeping people on track with a mental-health plan: mental-health courts.

The only one in Virginia is in Norfolk, and there are very few others across the country. An individual must be diagnosed with a serious mental illness to be eligible for a hearing in a mental-health court. If convicted of a crime, some kind of treatment plan is typically included as part of the sentencing. Unlike typical courts, it comes with an important hitch: Someone convicted in mental-health court who fails to show for treatment can be forced into hospitalization or sent to jail.

For the past five years, Overton has worked as a receptionist for the Richmond Behavioral Health Authority, a state-licensed entity responsible for providing preventive care for mentally ill and retarded people in Richmond.

Should the courts have more latitude in dealing with the mentally ill? The question is already putting some on the defensive.

"The individuals that receive service from us are concerned about backlash and misunderstanding on the part of the public," says Beth Rafferty, the authority's director of mental health services.

"There's three different things that can happen as a result of this," says John Lindstrom, the authority's director of medical services. "First, and least likely, nothing. Second, this might be a wake-up call to [make] more services available; and the third [result], … at the farthest extreme, would criminalize mental illness."

Lindstrom sees the renewed public interest in what is known as "outpatient commitment" as the most likely outcome in the wake of the Tech tragedy.

Outpatient commitment is one of the most hotly contested issues in the mental-health community. It refers to laws that allow courts to order a specific course of treatment — medicine, therapy — outside of a hospital. Think of it as psychiatric parole for people who may harm themselves or others, instead of someone who has been convicted of a crime.

According to the Bazelon Center for Mental Health Law, more than half the states now have some version of outpatient commitment on the books.

A wave of similar legislation passed through statehouses after New York passed "Kendra's Law" in 1999. The statute is named for Kendra Webdale, a woman who died after a person with schizophrenia pushed her in front of a New York City subway train.

A spokesman for Virginia Attorney General Bob McDonnell says the office is calling for legislation that would promote "assisted outpatient treatment" in Virginia, based on Kendra's Law.

Such legislation would beef up Virginia's statute. As it stands, if a court fears an individual is a danger to himself or others, the state can send them to inpatient treatment in a mental hospital even if he doesn't want to go. However, if that degree of treatment isn't deemed necessary, as it apparently was not with Cho in 2005, the court can order outpatient treatment — such as an appointment with a therapist.

But there's not much you can do if the person refuses that treatment.

"There are four other states that make it harder for someone to force treatment on a person: Georgia, Hawaii, Montana and Ohio have similarly restrictive standards about forcing people that show signs of mental instability into treatment," says Greg Baker, director of the Therapeutic Jurisprudence Program at the College of William and Mary's law school.

There's no consensus in the mental-health community about whether outpatient commitment is a good idea. So far, research on the effectiveness of outpatient commitment has been mixed. It also presents a thorny ethical scenario.

"Should the state have the right to force people into treatment if they don't want to be in treatment?" asks Dr. Brian Meyer, executive director of the Virginia Treatment Center for Children. "What is the consequence? Where are the teeth? Let's say someone doesn't take their medication. The consequence is you lock somebody up for three days. Is that a proportional response?"

Despite concerns that the upshot of the tragedy at Tech might be to criminalize mental illness, Meyer sees the criminal justice system as the place where he's most optimistic about potential positive change. He thinks the best outcome would be to develop more widespread use of mental-health courts.

Defendants who qualify to have their case heard before such a court must have a diagnosis of some kind of mental illness. And those charged with violent offenses, sex crimes and driving under the influence are not eligible.

Drug courts based on the same idea are much more common. Drug courts and mental-health courts are part of a larger, more recent movement known as "therapeutic justice," says Tricia Muller, chief operating officer for Judge Kim O'Donnell's drug court in Richmond.

"Judges got tired of seeing these people on a revolving basis," Muller says. Cases, for instance, typically involve low-level misdemeanors, such as urinating in public or petty burglary. "If you help the person get treatment, you shut down the crime, because you fixed what really was wrong," she says.

While the country continues to struggle with these issues and Virginia retools its legal response, Meyer's question remains: "How do you have a proportional response?" S

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