Testimony of Michael Allen
Bazelon Center for Mental Health Law
to the
President's New Freedom Commission on Mental Health
February 5, 2003
Dr. Hogan and members of the Commission: Good afternoon, I am
Michael Allen, senior staff attorney with the Bazelon Center for
Mental Health Law. I come before you today with a simple request:
That you adopt the recommendations of the Rights and Empowerment
Subcommittee and, in doing so, recognize the inexorable link between
civil rights and recovery.
Such a request from the Bazelon Center should surprise no one.
For the past 30 years, we have pressed for reform of the public
mental health systems from coast to coast. We have helped to develop
and enforce many of the bedrock constitutional and statutory protections
currently enjoyed by Americans with psychiatric disabilities. Through
litigation and policy development, we have helped to rid the nation
of "snake pits" and refocus public attention on the goals
that should be central to public mental health: recovery, community
integration and economic self-sufficiency. Above all, we have always
been ready to pick up an oar, and to labor with other mental health
stakeholders to support innovative approaches to achieve these ends.
The Center agrees with the Commission on the need for a recovery-oriented
system. In furtherance of that end, we have recently published a
"Model Law" providing a right to recovery-oriented services
and supports and made it available to stakeholders in all fifty
states through our website, www.bazelon.org
In its Interim Report, the Commission correctly identified recovery
as an appropriate and realistic goal for every person diagnosed
with a psychiatric disability. But that goal will prove elusive
in any mental health system that does not, in word and in deed,
recognize and respect civil and constitutional rights. That is why
it is important that the full Commission endorse the report of the
Rights and Empowerment Subcommittee, and endorse the important civil
rights principles that underlay the President's New Freedom Initiative
(NFI).
NFI was born of President Bush's principled belief that America
had, for much too long, excluded people with disabilities from the
American mainstream. It flows also from the U.S. Supreme Court decision
in L.C. v. Olmstead, which condemned unnecessary institutionalization
as a form of discrimination prohibited by the Americans with Disabilities
Act (ADA). This Commission owes its very existence to these basic
principles, so it is fitting that it heartily adopt a vigorous rights
and empowerment perspective.
The Subcommittee on Rights and Engagement prepared a detailed report,
which was summarized in the "Policy Options" paper made
public on January 9, 2003. In deferring consideration and approval
of this paper, the Commission may have left the impression with
some that it disapproved of the Subcommittee's recommendations.
We understand that nothing could be further from the truth, but
call upon the Commission to reaffirm its commitment to the paper's
underlying principles.
Let me be honest with you: If the Commission had asked the Bazelon
Center to draft the Subcommittee recommendations, they would have
been considerably stronger than the report you received and considered
on January 9. But, having said that, we strongly endorse the entire
report as a sensible and balanced approach. We recognize that there
is not room in the Commission's final report for each and every
recommendation, so we strongly encourage the Commission to adopt
the two highest priorities among the options presented: (1) Fully
implement the Olmstead decision (Policy Option 8 in the January
9 paper); and (2) Support initiatives to minimize seclusion and
restraint (Policy Option 11).
Policy Option 8: Fully Implement Olmstead: The Supreme Court's
decision in Olmstead is a watershed event in the development of
disability civil rights. In that case, the Court was asked to determine
whether Georgia violated the ADA by deciding to keep Lois Curtis
and Elaine Wilson in state psychiatric hospitals long after the
state's own doctors determined they were ready to return to the
community. Reading the statute and the implementing regulations
drafted by the Department of Justice, the Court concluded that the
women's rights had been violated. At the heart of its analysis is
the ADA's requirement that services be provided in the "most
integrated setting," that is, the setting in which people with
disabilities are able to interact to the maximum extent possible
with people who do not have disabilities.
Full implementation of the Olmstead mandate is impossible unless
a state has reviewed the status of all people in institutional settings–not
just people in psychiatric hospitals–and determined how many
are ready for community living. As part of this process, there must
be a careful assessment of the community-based services necessary
to support their re-integration and recovery. And states must take
concrete actions to move people out of institutions. This is what
the Court meant when it required "a comprehensive, effectively
working plan for placing qualified persons with mental disabilities
in less restrictive settings." While the court specifically
mentioned waiting lists as one means of achieving this goal, that
may not be the most effective approach in many states. The Court
focused on outcomes rather than process, and we strongly encourage
the Commission to do the same in adopting a strong Olmstead recommendation
in its final report.
President Bush's Executive Order on "Community-Based Alternatives
for Individuals with Disabilities" (June 18, 2001) mobilized
federal resources in support of the Olmstead decision: "The
Federal Government must assist States and localities to implement
swiftly the Olmstead decision, so as to help ensure that all Americans
have the opportunity to live close to their families and friends,
to live more independently, to engage in productive employment,
and to participate in community life." That commitment was
reinforced in the FY 2004 budget submitted to Congress, which includes
$1.75 billion over five years to help states develop and implement
strategies to "re-balance" their community and institutional
care programs, which have tilted noticeably toward the institutional
end for many years.
Community placement is critical to people whose lives are affected,
but it is also at the root of the Olmstead and NFI mandates. That
is why the Commission must include a strong recommendation in its
final report.
Policy Option 11: Support Initiatives to Minimize Seclusion
and Restraint: As the Subcommittee eloquently said, "[i]t
is now the professional consensus that the best way to reduce restraint
deaths and injuries is to minimize restraint use to the greatest
extent possible. High restraint rates are understood as evidence
of treatment failure. Many facilities and state agencies have had
substantial success in restraint reduction, while also reducing
staff and patient injuries." By including this recommendation
in its final report, the Commission can perform an important catalytic
role, and move the federal government to review existing initiatives
to minimize seclusion and restraint and provide technical assistance
and guidelines for States and Federal facilities.
Recovery and civil rights are interdependent concepts. We all agree
that it is better to incorporate both values into public mental
health systems as a matter of policy, rather than through litigation.
We stand at a crossroads in public mental health, and the Commission's
work will have a powerful impact on future developments in every
state system. Do not shrink from that responsibility; use your final
report to create a road map for establishing recovery-oriented mental
health systems in every state.
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The Bazelon Center for Mental Health Law is the nation’s
leading legal advocate for the rights of people with mental disabilities.
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