Behavior Modification and the Seriously Mentally Ill or Functionally Impaired: Special Issues to Consider Hon. Peggy Fulton Hora (Ret.) NDCI Senior Judicial Fellow Hon. Christine Carpenter

Serious Mental Illness (SMI) Definition

o  SMI includes schizophrenia, bi-polar disorder, major depression and other conditions causing significant impairment

SMI Statistics o  19% of the general population have a mental

disorder o  4% of general population has SMI o  9% on probation o  14% on parole o  15% of men and 30% of women in jail have a

SMI SAMHSA National Survey on Drug Use & Health (2013)

DSM-5 Changes o  No subtypes of schizophrenia (e.g., paranoid) o  No “Axes” diagnoses (e.g., Axis I, Axis II) o  Assessment and severity of core symptoms o  “Trauma and stressor-related

disorders” (PTSD) instead of “mood disorder”

Very little research o  Two types of studies: 1.  mental health focused programs

(psychopathological programs), which sought to reduce recidivism primarily by controlling psychiatric symptoms and reducing psychological distress. These programs were correlated with both improved clinical and recidivism outcomes

o  2. multidisciplinary programs, which emphasized both mental health treatment and psychosocial interventions directed at crimogenic factors.

o  Recidivism, and especially violent recidivism, can be significantly reduced by programs which feature conditional release, intensive case management, housing support, vocational assistance and a range of social supports, provided they are delivered along with clinical treatment

o  Blackburn R, “‘What Works’ with Mentally Impaired Offenders” (2012) 10(3) Psych Crime Law 297 at 297; Morgan R et al,“Treating Offenders with Mental Illness: A Research Synthesis” (2011) Online First Law Human Behav 12 at 13 cited in Michelle Edgely, “Solution-Focused Court Programs for Mentally Impaired Offenders: What Works?” 2013, 22, JJA 208.

The Basics of Incentives and Sanctions

o  We are trying to modify behavior. o  Rewards and Sanctions are both necessary for

better outcomes. o  Rewards increase desirable behavior. o  Sanctions reduce undesirable behavior.

Certainty and Immediacy o  Certainty is the most effective response. o  Threats do not work. o  Certainty should be applied in response to

reliable reporting. o  The closer in time the response to the

behavior, the more effective it can be. o  Certainty and Immediacy are more important

than magnitude.

Consistency, Notice and Fairness

o  Consistent responses, but tailored to the individual

o  Participants should know what to expect – handbook, participant handbook, etc.

Procedural Fairness/Justice o  Manner in which justice is done is just as

important and the outcome o  “…bridges the gap that exists between

familiarity and unfamiliarity and the differences between each person….”

o  www.Proceduralfairness.org

o  Burke, Kevin and Steve Leban, “Procedural Fairness: A Key Ingredient in Public Satisfaction,” Court Review American Judges Association (2007)

Procedural Fairness o  Voice: the ability to participate in the case by

expressing their viewpoint; o  Neutrality: consistently applied legal

principles, unbiased decision makers, and a “transparency” about how decisions are made;

Procedural Fairness, cont. • Respectful treatment: individuals are treated with dignity and their rights are obviously protected; • Trustworthy authorities: authorities are benevolent, caring, and sincerely trying to help the litigants—this trust is garnered by listening to individuals and by explaining or justifying decisions that address the litigants’ needs. Tom Tyler, “Why People Obey the Law” 22 (2006)

Fairness is Key

o  People will accept an unfavorable ruling if they feel the process is fair.

o  People who win but who do not feel they were treated fairly are unhappy with the procedure

Why do people accept court decisions?

Tom Tyler, Procedural Fairness, COSCA 2011

Willingness to accept decisions based upon reason for being in court.

R-E-S-P-E-C-T o  Proactive trouble shooting o  Judge directly address progress o  Open courtroom o  All observed consequences o  Genuine, caring, consistent and firm

Carrie J. Petrucci, "Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court that Utilizes Therapeutic Jurisprudence.“ CRIMINAL LAW BULLETIN 38:2 (2002)

o  Active listening o  Rogerian approach

(warmth, empathy, and genuineness)

o  Shared respect

Predictable and Attainable Goals

o  What goals are we seeking? o  Proximal goals o  Distal goals o  Expectations should change over time

Graduated Incentives and Sanctions o  Proximal goals – lower magnitude reward,

higher magnitude sanction. o  Distal goals – lower magnitude sanction,

higher magnitude reward. o  Too low – habituation o  Too high – ceiling effect

I & S in this context o  Apply only with input from clinicians o  Behavior may be related to condition or side

effects of medication o  “Anosognosia”: an incapacity to recognize

their own illness so they will resist, refuse or sabotage treatment

o  Affects 50% of people with mental illness* o  Don’t confuse with “treatment resistance”

*Pia L and Tamietto M, “Unawareness in Schizophrenia: Neuropsychological and Neuro- anatomical Findings” (2006) 60(5) Psychiat Clin Neuros 531 at 532 cited in Edgely, supra

Summary

o  Responses to behavior should be consistent with the supervision requirements and treatment plan and reflect both short and long term objectives for each participant.

Terminology o  Old MHC language: Incentives and Sanctions,

Compliance o  New MHC language: alliance, motivation and

engagement o  Ongoing judicial monitoring/relationship to

motivate engagement in treatment, pro-social activities and civil society.

The Essential Elements of a Mental Health Court

o  Essential Element #9 o  Individualized, graduated incentives and

sanctions and treatment modifications to promote public safety and participants’ recovery.

#9 continued

o  Imposed “with great care” and with input from mental health professionals

o  Develop specific protocols for jail as a sanction

o  Ad hoc praise and rewards are helpful and important incentives

#9 continued

o  Phases should reflect participants’ progress o  Public recognition of progress o  Number of available incentives should be as

broad as sanctions

Judge is most important factor o  80% of participants say

they wouldn't have stayed in drug court if they did not appear before a judge

Drug Court Clearinghouse, American U.

o  Interaction and delivery of response has most impact on participant performance Judge Christine Carpenter (MO)

Judicial Monitoring o  Vital Role o  Role more subtle and nuanced than other

treatment courts o  Informed listening o  Engagement is key

o  “The Role of the Judge in Treatment Monitoring”, JLI Newsletter 2:1 (2006)

Motivating Engagement o  Seriously mentally ill participants often have

impoverished lives and few successes to celebrate.

o  Celebrate accomplishments; avoid more failure

o  Coordinate judicial and clinical responses o  Don’t confuse treatment and services with

rewards and punishment

Motivating Engagement o  Phases are not as rigidly defined as other

treatment courts. o  Responses to behavior should be more

flexible with this population. Be aware that effects of psychotropic medications, symptoms of withdrawal, symptoms of mental illness, changes or problems with housing, family or treatment may all contribute to failure to comply with court requirements.

Motivating Engagement o  Your reward = my punishment! o  Be supportive rather than confrontational. o  Articulate: If you change this (fill in the

blank), this (fill in the blank) will happen”. o  Link volunteer work with something client

like to do (work with animals, etc.) o  Frequent court appearances at regular

intervals also establish structure and routine.

Motivating Engagement o  More frequent court appearances for this

population will ensure the response is close in time to the behavior which establishes a clear connection between the behavior and the response

o  Lots more carrots than sticks (4:1) o  Engagement strategies will reflect the style of

the Judge and the court team

Role of the Judge o  “Like a coach, the judicial officer is applying

motivational psychology – he or she must at all times be acutely conscious of the psychological dynamic and the philosophy underlying the court’s program”

o  King M, Solution-Focused Judging Bench Book (Australasian Institute of Judicial Administration Inc, 2009)

Judicial skill o  Familiarity with Stages of Change o  Motivational Interviewing o  Drug Court Judicial Benchbook, Section 4.9 o  Motivationalinterview.org o  Proceduralfairness.org

Judicial “Key Competency” o  Emotional intelligence o  “The ability to monitor one's own and

other people's emotions, to discriminate between different emotions and label them appropriately, and to use emotional information to guide thinking and behavior”

Duffy J, “Problem-Solving Courts, Therapeutic Jurisprudence and the Constitution: If Two is Company,

is Three a Crowd?” (2011) 35 MULR 394 at 395. cited in Edgely, supra Definition: Coleman, Andrew (2008). A Dictionary of Psychology (3 ed.). Oxford University Press

“Pygmalion Effect” o  Psychological phenomenon based on the

notion that a person will adjust their thinking and behavior to align with the expectations of a respected authority figure.

o  Self-fulfilling prophesy o  Authority figure’s expectations of a target are

transferred to and internalized by that target o  Duffy, supra cited in Edgely, supra

“Golem Effect” o  Can undercut the efforts of even the most

well-intended judicial officers. o  Arises when an authority figure sets the bar

too low and transfers modest expectations to the target, affirming his or her low self-esteem. The result can be low levels of performance.

o  Duffy, supra cited in Edgely, supra

The Goldilocks Effect

Getting it “Just Right” o  The challenge for solution-focused judicial

officers is to: 1.  read each individual offender, 2.  set demanding but achievable goals 3.  and convey high expectations, 4.  but without setting the offender up to fail. Duffy, supra cited in Edgely, supra

“Transformational Leadership” o  Enhances the motivation, morale, and

performance of followers through a variety of mechanisms

o  Connecting the follower's sense of identity and self to the project and the collective identity of the organization

o  Being a role model for followers that inspires them and makes them interested

Leadership, con’t. o  Challenging followers to take greater

ownership for their work o  Understanding the strengths and weaknesses

of followers, so the leader can align followers with tasks that enhance their performance.

4 Models o  All have the same tools that they employ: 1.  Respect, 2.  empowerment, 3.  positive reinforcement and 4.  individualized treatment. o  Each depends on the relationship that a

judicial officer can forge with each individual offender.

Edgely, supra

Judicial Responses to Engagement and Progress

o  Recognition: praise, honor roll, applause, showcase talent (art work, music)

o  Less frequent appointments with court staff o  Status hearings: priority in order or

appearance or seating o  Certificates for phase completion

Judicial Responses, continued o  Presents, gift certificates, tangible rewards o  Participation in court sponsored events o  Less restrictive pre-trial release conditions o  Less frequent drug testing o  Granting privileges (travel, later curfew) o  Charge reduction/dismissal

Incentives promote abstinence o  Addiction changes the brain in ways that

make individuals more responsive to short term rewards and less able to forego them in the interest of longer term benefits.

o  Incentives weaken over time but can show benefits for 1-2 years.

o  Volkow, Nora D., M.D., “Incentives Promote Abstinence,” NIDA Notes 23:3 (2011)

Abstinence o  Expectations of sustained abstinence may

need to be amended to more realistic goals. o  Graduated responses should be flexibly

applied after considering effect of mental illness on ability to achieve sustained abstinence.

o  Caveat: Being mentally ill does not mean participants should not be held accountable for behavior and choices.

Judicial Responses to Non-Adherence and Non-Engagement o  Reprimand, disapproval o  More frequent appointments with court staff o  More frequent status hearings o  Penalty box o  Writing assignments o  Workbook assignments

Judicial Responses, continued

o  Unannounced visits o  Loss of privileges (travel, curfew) o  Community service o  More restrictive pre-trial release status

(electronic monitoring, etc.)

Judicial Responses, continued

o  Bench warrant o  Jail remand o  Termination

Jail Sanctions

Adult Drug Court Best Practices Standards, Vol. I, IV., J. o  Jail sanctions imposed judiciously and

sparingly. o  Administered after less severe consequences

have been ineffective o  Definite in duration and no more than 6 days

maximum o  Due Process requires access to counsel and

hearing if jail sanction may be imposed

Jail considerations for persons with SMI o  Use jail sparingly so medication regimes are

not compromised o  Possible loss of SSI or other benefits o  Length of time in custody o  Strip search o  Segregation o  Victimization o  Look for creative alternatives to jail

Strategies to consider o  Behavior is tied to people, places and things. o  Those are what need to change. o  How can we make this population see the

connection between needed behavior change and the choices of people, places and things?

Include the Team o  Develop responses to behavior with the team

and realize the relationship between the participant and their probation officer or case manager and treatment providers is different from the relationship with the Court.

o  The Court ultimately has the control and responsibility to create boundaries and mandate compliance. Blend care with control.

Don’t forget clinical responses to behavior o  NA/AA/Double Trouble/Secular alternatives o  Clubhouse, other peer support o  Treatment engagement groups (remand

intervention) o  Hospitalization

n  Voluntary n  Involuntary

Clinical responses, continued o  Detox/drug rehabilitation facility o  Transfer to different provider, same service

but better fit o  Transfer to more or less restrictive housing or

treatment program o  Other groups (MRT, money management,

anger management, family counseling, parenting classes)

Role of MH Tx o  Mental health treatment must be seen as an

important adjunct to criminogenic programs.

Edgley, supra.

FOOD FOR THOUGHT

o  Can we expect behavior modification to help achieve desired outcomes?

o  What else needs to happen to help achieve desired outcomes?

o  How appropriate is it to use incentives and sanctions to motivate treatment compliance when available treatment may not be effective?

o  What treatment and services should severely mentally ill participants be receiving?

o  Is there “criminal justice informed treatment” available?

o  What is the appropriate judicial response to non-engagement in treatment, but no further criminal behavior?

Recovery is… o  The “process of changing one’s attitudes,

values, feelings, goals, skills and roles [involving] the development of new

meaning and purpose and a satisfying, hopeful and contributing life.”

o  Thomas JE, “Diversion and Support of Offenders with a Mental Illness: Guidelines for Best Practice” (Justice Health, Department of Justice (Vic), 2010) cited in Edgely, supra

In Closing o  Balance public safety with therapeutic

response to encourage recovery and rehabilitation

o  Delivery of the response is as important as the response. An explanation of the response will create a perception of fairness, which will lead to better future compliance.