This article was originally published in the September 2021 issue of the Arizona Attorney Magazine starting on pg. 40
What we call the beginning is often the end.
And to make an end is to make a beginning.
The end is where we start from.
-T.S. Elliot
John Goss, a frequent bank robber and equally frequent patient at the Arizona State Hospital ("ASH"), is also an Arizona pioneer. Owing to his personal struggle with mental illness and a serendipitous encounter with Arizona attorney Charles ("Chick") Arnold, John became "Patient Zero" in Arizona's decades-long effort to build a "system of care" for mental health services. At this juncture, and amidst a plethora of attention to "mental illness," John's story reminds us of clinical principles that undergrid treatment of the most seriously mentally ill and of the powerful role of attorneys who challenge and change legal blockades that undermine public health and safety - and individual human potential.
An Unusual Bank Robber
Unusually, John did not rob banks for money. He robbed banks upon the command of unrelenting voices that occupied his mind and controlled his life. An imposing figure, at six foot, 220 pounds, and muscularly built, John had a typical life until his first psychotic breakdown. The "voices" came... and stayed. Sometimes it was multiple voices simultaneously, and sometimes one voice. Some voices were benevolent and told him he was the nephew of Howard Hughes or advised him to become the president of the United States. Some voices commanded specific "actions". If John refused the voice's commands, they became so loud he could hear nothing else, so unrelenting he could have no other thoughts. And then he experienced debilitating, excruciating headaches. The voices' orders were also unpredictable; they told John to kill people as readily as they told him to remove his clothes. They disrupted John's life and left him disabled and isolated.
Unable to get psychiatric care in Phoenix, John required nearly constant hospitalization at ASH - in 1971, 1972, 1973, and 1974 to 1978. During each stay at ASH, Goss was duly "stabilized" and discharged. The absence of community mental health treatment left John to languish alone in poverty, untreated, living at the mercy of the voices. He contemplated suicide because he could not "forever endure his misery and loneliness. [1]". One treating physician noted, "I never saw [John] interact with anyone else. He usually spent his time roaming around the streets of Phoenix or sitting by himself at the boarding home... He lived a miserable, lonely, isolated life [2]."
In the spring of 1980, the "voices" commanded John to rob the First National Bank at First Avenue and Washington, which he did. He walked to the into the bank and handed the teller a note that read, "This is a robbery. Give me $1,000.00. I have a gun [3]." He walked out of the bank with the cash and waited at the corner to cross the street because the light was red. (John's mother always warned him not to cross a street against a red light. [4]) He was apprehended before the light changed, and he happily returned to ASH for the fifth time. Upon release one year later, John was placed in a "supervisory care home" with room and board, but no treatment.
"That's when John Goss came to me," says Chick Arnold, the Maricopa Public Fiduciary at the time [5]. "He lived in what I've termed the mental health ghetto. He would walk the streets every day and stop by my office." On one visit, John asked Arnold about a law John had heard guaranteed "comprehensive" mental health services - which John knew he certainly never received.
Arnold v. Sarn and Arizona's "System of Care"
On March 26, 1981, Arizona's Center for Law and the Public Interest filed Arnold v. Arizona Department of Health Services, Case No. C432355, as a special action in the Maricopa County Superior Court. John Goss was one of five people, including attorney Chick Arnold, who served as plaintiffs on behalf of the various "classes" of mentally ill individuals living in Maricopa County. The complaint alleged that the defendants (the state of Arizona, ASH, Maricopa County) breached their duty to create an adequate and appropriate system of mental health services in the community. Despite a statutory mandate to provide such a system, the complaint alleged what existed amounted to a "token" system. This, in turn, necessitated repeat hospitalizations that offered little more than warehousing patients in the most restrictive environment.
Class members were individuals characterized as "chronically mentally ill" or "CMI [6]." The complaint described the clinical phase of CMI with an emphasis on the necessity of continuous treatment appropriate to each phase. Knitting together care across the phases meant creation of a unified "system of care." In an acute phase, individuals need hospitalization to be stabilized and protected from harm to themselves or others through acts of violence or potentially violent crimes - such as robbing banks on command of voices, as John's case demonstrated. The residual phase required various outpatient treatment and services. Arizona statutes, in fact, mandated such a system, and that "system must provide a full continuum of care with each service available to all CMI individuals who would reasonable benefit therefrom [7]." Arizona simply had not followed its own law.
In 1985, the trial court determined that individuals living with CMI were entitled to the statutorily mandated "full continuum of care" that included "but was not limited to: inpatient care, case management, residential services, day treatment, outreach, medications, outpatient counseling, crisis stabilization, mobile crisis services, socialization, recreation, work adjustment, and transportation [8]." The court predictably found the defendants had breached their duty to create such the mandated system of care and ordered them to do so. The court awarded substantial attorney fees. And the legal battle - predictably - continued.
In 1989, Arizona's Supreme Court affirmed the trial court's decision. In language both scolding and hopeful, the Court opined:
The moral test of government is how it treats those who are in the dawn of life, the children; those who are in the twilight of life, the aged; and those who are in the shadows of life, the sick, the needy and the handicapped.
...
We write today from the bottom run of the ladder. The record before us demonstrates that Arizona is last among the states of this union in providing care and treatment for its indigent chronically mentally ill [9]."
In 1991 the State and Maricopa County submitted their plan to implement the 1986 court order, which the court adopted as the "Implementation Plan" or "Blue Print" by which the State and Maricopa County would proceed. The Projected completion date was 1995; the estimated completion cost was $240 million. Between 1991 to 1995, over 100 of the commitments were met [10]. Tangible creation included: an infrastructure for mental health services, a robust set of rights for those living with CMI; clinical services, homeless outreach, and new inpatient service location in the East and West Valley. in 1992, a full 25 years after other states, Arizona finally accepted Medicaid
funding for mental health services. In the coming decades. billion of dollars poured into the nascent system of care and a vibrant mental health industry emerged.
By 1995, an Exit Stipulation replaced the Implementation Plan as the controlling court order. The Stipulation required that "ADHS will reduce classmember census and bed capacity for non-forensic classmembers at ASH... to no more than fifty-five [11]." In other words, at any time, there may not be more than 55 civil-side patients from Maricopa County admitted to ASH. The limitation reflected pragmatic mistrust that defendants would once again warehouse clinically difficult, expensive clients like John Goss. The 55-bed limitation was an arbitrary but "hard stop" to the sad history of a rotating door in and out of the State Hospital with no real treatment once the patients hit the streets of Phoenix.
Beyond the 55-Bed Cap
While the intent of the 55-bed cap was well meaning, it was and is bad policy, for a number of reasons.
First, because the cap is fixed, it places Maricopa residents at high risk of never receiving the inpatient treatment they need. In 1995 Maricopa County had a population of 2.5M; in 2021 it is 4.5 million. The resulting scarcity of beds today is staggering. For example, today we know that communities need 40 to 60 state hospital beds per 100,000 people within and as part of a system of community-based care. Among members of the Organization for Economic Cooperation and Development (EOCD), countries average 68 beds per 100,000 [13].Due to the deinstitutionalization movement, the United States falls short with an estimated 11.7 beds per 100,000, ranking 29 out of 34 OECD countries [14]. In Maricopa County, the fourth-most-populated county in the United States, there are a mere 1.2 beds per 100,000 as a result of the 55-bed limit.
Remarkably, despite the fact that ASH is almost never full, there is always a waiting list of desperately ill individuals in Maricopa County who cannot get a bed because there are already 55 others from Maricopa County already admitted. In reality, for residents of Maricopa County, there is no state hospital. As one mother remarks, "When our song got in ASH, it was like he got into Harvard."
Second, a 55-bed cap on beds at ASH directly undermines Arnold's concept of a unified, comprehensive, continuous system of care for Maricopa county. It renders those off-recited adjectives meaningless rhetoric. State hospitals are more than lifesavers for the most gravely ill. They provide longer-term treatment that is qualitatively and quantitatively different from all other psychiatric hospitals. For example, some anti-psychotic medications, and those commonly used for the most treatment resistant patients, require six months of administration for full effectiveness [15]. Yet the average length of stay at a psychiatric hospitals is 10 days [16]. Treatment modalities like behavior modification therapy take months for meaningful effects. State hospitals provide off-campus rehabilitation programs and other therapeutic activities, including helping patients develop living skills (cooking, cleaning, how to ride the bus, etc.), which many lack. This menu of services - implemented over weeks and months - is necessary for treatment-resistant and chronically ill patients.
There is no "fast track" recovery for those patients. They require inpatient stays without unrelenting utilization reviewers "approving" additional hours or days. The patient can be repeatedly assessed on passes of increasing length and independence in order to gain capabilities in less structured settings. No other psychiatric hospitals do these things. And doing these things well is essential to a safe landing in the community and a real chance for sustained recovery.
Third, residents in Maricopa County face a bleak future that most likely includes repeated justice system involvement with jail and prison stints, homelessness, victimization and premature morbidity. Without a place to stabilize during the acute phase of the illness, this group transitions from one crisis to the next. They cycle through our "other" public systems with persistent police and fire interactions, long medical hospital stays, incessant emergency room visits, multiple psychiatric hospitalizations, numerous rounds of civil commitment, homelessness, arrests for petty crimes and, sadly, arrests for serious crimes that can mean years in prison. Each time there is an episode and cycling, the baselines lowers, and outcomes are worse.
Not surprisingly, the three largest mental health facilities in our country are the jails in Chicago, Los Angeles and New York. Nor should we be surprised that nearly half of the homeless population has a mental illness and a quarter have a serious mental illness.
Due to the bed limitation at ASH, this population is unable to access the appropriate level of care and is condemned to inhumane outcomes. Figures 1 and 2 represent Laurie Goldstein's meticulous tracking of a single year of their son's contacts in the community system of care. The cost was $2.6 million.
When those who need treatment do not receive it, they cycle as illustrated here. In doing so, they consume scarce mental health resources. This is most easily described through our civil commitment system.
A person ordered to involuntary inpatient treatment is hospitalized at Valleywise Health, which is the only hospital system licensed to care for the patient in Maricopa County during the Title 36 evaluation process. While at Valleywise, the patient will receive the best psychiatric care in the state for serious mental illness and episodes of it. It provides a longer length of stay than most hospitals, averaging 22 days for a patient who is court ordered. Despite that, it is not a hospital set up for longer-term care. Yet for most people, this stay is enough; they stabilize and go back to their lives. Unfortunately, even with significant expansion in the last several years, the 343 beds at Valleywise fall short of what is needed for the 4.5 million residents of Maricopa County. The system as this level is already bursting at the seams.
A sad reality is that after many patient discharges from Valleywise, within weeks the same patient returns. The pattern repeats until the patient is so ill and so debilitated that release into the community is no longer safe. When patients are so disabled, it is not uncommon for them to remain for a year or more at Valleywise. Not surprising given the 55-bed cap, frequently a dozen or more patients remain at the facility for more than a year...waiting for a bed at ASH. A few have waited years. Figure 3 provides a graphic representation of the backlog created by the limited ASH beds.
Each person holding a bed for a year represents 17 others who could have received a high-quality and appropriate 22-day stay [17]. The person who needs a bed but does not get one in turn becomes more ill. That person is often at one of the three screening agencies in Maricopa County, which are the first stage of the civil commitment process. Because they cannot get a bed of the care they need, they come out untreated and cycle back through. Because there is not capacity at the screening agency (or space at Valleywise), patients in the community must wait. This most often happens at emergency rooms, where the patient tis held "psychiatrically boarded," without treatment, until there is space at the screening agencies [18]. Each time a person needing emergency psychiatric care is denied, he or she becomes more ill. All this goes on while beds sit empty at ASH. in 2020 there were on average 12 ASH beds vacant at any one time [19], yet Maricopa's desperately ill residents were denied admission because the 55-bed cap "is the law".
Legal Perils of the Bed Limit
The 55-bed limit is not only unreasonable and harmful to Maricopa County, but it now violates the 14th Amendment, the Americans with Disabilities Act (ADA) and Arnold itself. The ADA includes an "integration regulation" which states that "a public entity must administer services, programs, and activities in the most integrated, least restrictive setting appropriate to the needs of qualified individuals with disabilities [20." This principle was made most famous in the case Olmstead v. L.C [21]. Here, United States Supreme Court held that unjustified institutionalization of persons with disabilities constitutes discrimination in violation of Title II of the Americans with Disabilities Act.
Since Olmstead, the Justice Department has issued guidance, stating, "The ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings. Individuals need not wait until the harm of institutionalization or segregation occurs or is imminent." It continues, "A plaintiff could show sufficient risk of institutionalization to make out an Olmstead violation if a public entity's failure to provide community services... will likely cause a decline in health, safety, or welfare that would lead to the individual's eventual placement in an institution [22]."
The 55-bed cap place Maricopa County residents at extreme risk of institutionalization. Those who need the State Hospital but are held at Valleywise only to cycle back through are becoming more ill. Those who are unable to receive a 22-day stay because a bed is taken are made more ill. Those who are held in emergency rooms without psychiatric care are also burdened more by the 55-bed limitation. ironically, because Arnold created a unified system, bad policy in one area necessarily affects another. The result is that those with general mental health issues become seriously mentally ill, the SMI become the CMI, and the CMI end up in institutions. This is a violation of the ADA and the Supreme Court's decision in Olmstead.
Not to be overlooked is the obvious relevance of the 14th Amendment of the Constitution. Individuals finding themselves at ASH, Valleywise, the screening agencies, or in emergency rooms are in that location pursuant to civil commitment. civil commitment is a "massive" curtailment of liberty [23]." Thus, "Commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection [24]." The importance of the constitutionally protected liberty interests mandates that state and local governments comply with both substantive and procedural due process under U.S. Const. amend. XIV and Ariz. Const. art. 2, section 4. Furthermore, the nature of any detention must bear a reasonable relationship to the purpose the deprivation was ordered [25]. When a person is confined under civil commitment proceedings, the only legitimate interest is rehabilitation. Pursuant to the Constitution, a person so detained is entitled to adequate treatment [26]. Due process requires that civil commitment "be accompanied by minimally adequate treatment designed to give each committed person a 'realistic opportunity to be cured or to improve his or her mental condition[27].'"
Yet for many people needing care within the system, the 55-bed limit denies the patient of adequate treatment and eliminates opportunity for improvement. Worse yet, in many instances the bed cap forces individuals into endless cycles of illness. At every level - ASH, Valleywise, the screening agencies and emergency rooms - this policy creates more illness. Thus, this policy violates long-held law on patients' due process rights.
Interestingly, the 55-bed limit, which came from a 1995 stipulation of the parties, also violates Arnold itself. Arnold required a full continuum of care and a unified system. It recognized that inpatient care, including the State hospital, were part of the continuum. Limiting a county of 4.5 million people to 55 beds all but eliminates the State Hospital as a treatment option, ending the full continuum. And again ironically, because the system is otherwise so unified - maybe more so than any other state - removing a foundational element in the continuum of care thoroughly disrupts the unity created. therefore, the 55-bed cap violates Arnold itself.
John Goss' Legacy
John Goss was a pioneer in patient self-advocacy. His inquisitiveness, tirelessness and good fortune to have Chick Arnold as his attorney spawned Arizona's first demand for accountability and performance by the State's taxpayer-supported mental health system. Thousands of Arizona's most vulnerable individuals languished - until John Goss stepped forward and asked, "Isn't there a statute that says - ."
Arizona's current public behavioral health system emerged from the pain and suffering that John Goss and others like him endured in Arizona's mental health system circa 1970s. John's unsung legacy, Arnold v. Sarn, and the ensuing community behavioral health system, allowed Arizona to climb up from the lowest run on the ladder. But some of the implementation measures are outdated. Most prominent, the 1995 Arizona State hospital bed limitation for non-forensic patients from Maricopa County. Circa 2021, that policy violates the constitution, the Americans with Disabilities Act and the 1989 holding in Arnold - and harms the people standing in the shoes of John Goss today.
Endnotes
Maricopa County Superior Court No. CR112612, Leonardo Garcia-Bunuel, Psychiatric Examination, Dec. 1, 1980, at 2; and Otto Bendheim, Psychiatric Examination, June 4, 1980, at 3.
Arnold v. Arizona Dep’t of Health Servs., 160 Ariz. 593, 597, 775 P.2d 521, 598 (1989).
Maricopa County Superior Court No. CR112612, Motion for Examination of Defendant’s Mental Competency.
Bendheim, supra note 1, at 2.
Telephonic interview with Chick Arnold, June 28, 2021, Phoenix, Ariz.
The statute now uses the term “Seriously Mentally Ill.” A.R.S. § 36-550.
Arnold, 775 P.2d at 600
Id. at 601.
Id. at 594.
Maricopa County No. C-432355, Joint Stipulation on Exit Criteria and Disengagement.
Joint Stipulation on Exit Criteria and Disengagement, page 9, paragraph 11.
Organization for Economic Cooperation and Development (2013). Health at a glance 2013: Hospital beds by function of health care, 2011 (or nearest year).
E. Fuller Torrey et al., The shortage of public hospital beds for mentally ill persons. Arlington, VA: Treatment Advocacy Center, 2008.
Id.
Herbert Y. Meltzer, M.D., Treatment of the neuroleptic–nonresponsive schizophrenic patient, Schizophrenia Bull., Vol. 18, Issue 3, 1992, at 515–542.
Sungkyu Lee, Aileen B. Rothbard & Elizabeth L. Noll, Length of inpatient stay of persons with serious mental illness: Effects of hospital and regional characteristics, Psychiatric Servs. 63(9) (Sept. 2012), at 889-95. Available at https://pubmed.ncbi.nlm.nih. gov/22751995/.
On average, the bed turns over every 22 days. In a 365-day period, this provides 16.59 full inpatient stays.
Arizona Hospital and Healthcare Association, Waiting for care. causes, impacts and solutions to psychiatric boarding in Arizona, July 2015.
Arizona Department of Health Services, State Hospital Annual Report, Fiscal Year 2020, at 7. The civil hospital has 116 beds. The average daily census was 104. These are paid for, but beds sit empty because of the 55-bed cap.
28 C.F.R. § 35.130(d).
527 U.S. 581 (1999).
Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. (“DOJ Olmstead Statement”), https://www.ada.gov/ olmstead/q&a_olmstead.pdf (last updated June 22, 2011).
Humphrey v. Cady, 405 U.S. 504, 509 (1972).
Addington v. Texas, 441 U.S. 418, 425 (1979).
Jackson v. Indiana, 406 U.S. 715, 738 (1972).
Ohlinger v. Watson, 652 F.2d 775, 777-78 (9th Cir. 1980).
Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971).
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