Robert Gehrke: Utah’s treatment of mentally ill people accused of serious crimes is a failure, but help may be on the way

(Francisco Kjolseth | The Salt Lake Tribune) “We shouldn’t be locking people up and throwing away the key because they are mentally ill,” writes Robert Gehrke.

UPDATE: Since this column ran, the Utah State Hospital decided it will not release the individual referenced who had been facing manslaughter charges until it is determined there are appropriate community resources in place.

There’s a man at the Utah State Hospital who has been there for nearly two decades after he was deemed mentally incompetent to stand trial on charges of kidnapping and attempted murder.

This isn’t his first stint there. Back in 1983, he was committed to the mental hospital after he was charged with burglary and manslaughter. He was eventually released and put into a community placement program but a short time later was back in court on the attempted murder charge.

Now, barring some intervention, this man is due to be released again before the end of the year.

It is by no means an isolated occurrence, with numerous patients at the state hospital facing charges of murder, arson, sexual abuse of children, who were found to be incompetent to stand trial. But because of pressures on the system — a scarcity of bedspace, state and federal rules about treatment plans, and a settlement of a lawsuit against the state — many of those patients are slated to be released.

Of course we don’t want to just lock people away indefinitely like they’re the expendable wards in “One Flew Over the Cuckoo’s Nest". At the same time, we don’t want to release people into perhaps the most overburdened mental health system in the country without the support they need when they could be a danger to themselves or others.

Even where local providers do exist, they are often ill-equipped to deal with more serious cases — arsonists, pedophiles or people with violent felony records.

But the list of people slated to be released after being sent to the hospital in lieu of a criminal trial keeps growing. In 2015, six people were added to the queue to be discharged, in 2016 it was 15, in 2017 it was 8. And in 2018? It jumped to 35.

It constitutes a systemic failure on multiple fronts.

Before I go much further, here’s what you need to know: When someone stands trial, his or her attorney or a prosecutor can request a competency evaluation. If the defendant is competent to stand trial, the case proceeds; if not, it’s determined if the person can be restored to competency.

If restorative treatment is an option, he or she is committed to the state hospital; if not, the individual may be released back into the community without standing trial or receiving access to the resources they need. In those instances, a prosecutor can seek to have the individual civilly committed to get help.

But individuals are only supposed to be sent to the state hospital for a finite period of time.

Even when the crimes the individual has committed have been increasing in number and severity and they could have benefitted from treatment, Deputy District Attorney Darcy Goddard told a legislative committee last month, they are released back to society where some re-offend and create more victims.

In more severe cases, a prosecutor can go back to the judge and, citing the original criminal charges, obtain a new arrest warrant, have the individual picked up by police, re-evaluated and have the process start all over.

It is clearly a system in need of serious reform.

Fortunately, Rep. Paul Ray, R-Clearfield, is working on legislation to address some of the more urgent problems — legislation that is the product of three years of work between prosecutors, state hospital officials and representatives of the mental health community.

Details are being worked out, but broadly, the bill would require the state hospital to notify prosecutors, defense attorneys and the court 60 days before a forensic patient is due to be discharged. At that point, a more thorough evaluation can be requested — without having to re-arrest the individual. That review would include assessing what resources are in place to support that individual in the community.

There’s another problem in that the competency evaluators the state hires tend to side toward deeming patients incompetent at alarming rates. On average, Utah competency evaluators are twice as likely as their national counterparts to determine an individual is incompetent. For some evaluators the frequency is three times as high, up to 75%.

Ray’s bill would likely provide resources, training and guidelines for those evaluators to help ensure they are making correct determinations.

As I said before, we shouldn’t be locking people up and throwing away the key because they are mentally ill. Rehabilitation and restoration remains a crucial objective.

But when decisions on who gets released start being driven by factors like bedspace and federal Medicaid rules the system risks falling apart. At that point, patients face the possibility of being turned out into the community to sink or swim on their own, without adequate treatment or support, a risk to themselves or those around them.

And in those cases, the system fails everybody.