For over three decades I have heard the laments of parents, siblings, and loved ones expressing frustration with the mental health system in Illinois. Complaints about the lack of services, continuity of services, residential care options, and effectiveness of treatment are repeatedly made, and the resulting devastation to individuals and families is evident.

The consequences of the fragmented non-mental health system in Illinois results in failed treatment, suicide, the criminalization of persons with mental health issues, unemployment, homelessness and the destruction of families. It is seen and experienced every day. It is expensive, inefficient and many individuals in need of service are either not served or underserved. Family members attempting to get help for loved ones are faced with a confusing legal system, lack of insurance coverage and no clear answers to how they can get help for someone with a mental health issue in need of care. 

Many frustrated people come to our law firm seeking help for their loved one. Over the years we have developed a paradigm to help these individuals to get the services they need. We call it a three-legged stool of mental health treatment.

Leg One

The first leg of the stool is to get the person stabilized, which often requires in-patient hospitalization. It is not just putting a person in the hospital. It is a clear intervention that is carefully designed to stabilize the person, to get them away from the toxic environment they are in with a specific purpose to get them on the road to rehabilitation. The hospitalization must be with a specific purpose, with an eye toward what treatment is needed and a specific outcome in mind on the day of admission. The adage is that discharge planning starts on the day of admission. This must be a component of every admission to a hospital. Where is the person going to go on discharge?

Hospitalization must include a commitment to keep the person long enough to stabilize the person and get them on the correct medication. It must include a commitment to do an appropriate discharge plan. It must include going to court to secure an order for commitment if the person is not cooperating and an order for treatment if they are refusing. Anything short of these elements makes it likely the hospitalization is for naught. 

Leg Two 

The second leg of the stool is the treatment petition. Oftentimes we experience individuals who have been successful when they are on their medications but for whatever reason stop taking their medication. The consequences are often a deterioration of their ability to successfully function. When they are on their medication, they are capable of being independent. When off their medication, they experience significant issues and problems in their daily lives. Whether it be relationships, employment or ability to cope with the ordinary demands of life, the individual has difficulty without the proper medication. 

For these individuals, there must be a commitment to get them the medication they need. A petition for treatment often must be filed in court to allow the person to receive the medication over their objection. This statutory process is designed to protect a person’s right to refuse the medication but override that right when it is shown by clear and convincing evidence that the medicine is appropriate in this particular case. 

Going to court to commit someone and getting them properly medicated can take time, often 10 days or more. Having the person in the hospital without medication is frustrating for the person in the hospital and the staff who cannot use all the treatment tools available to them. Waiting for the court process can cause deterioration in the person and economic challenge for the facility. It takes staff time to take someone to court and puts them in a direct adversarial position with their patient. Court intervention is expensive and stressful for all. 

Yet the failure to pursue court orders allows or results in the patient’s discharge without treatment. This in turn can lead to the need for re-hospitalization or further deterioration of the patient. Neither of those outcomes is attractive. Thus, many individuals who experience chronic conditions, have multiple admissions to the hospital and have not had the benefit of court intervention often end up in the criminal justice system or languish in the community. 

It is our experience with chronic, long-term cases, court intervention is the answer to provide the treatment that is essential for success. 

Leg Three 

When a person is admitted and treated in the hospital, the trajectory is improved. However, it is important to provide a structure for success when they are ready for discharge. In our view, an appropriate discharge plan should include the available tools to allow the person to succeed without re-hospitalization. Such tools include but are not limited to an assistive outpatient treatment order, a power of attorney for health care and a mental health treatment declaration.

The Illinois Mental Health Code has a provision for an outpatient treatment order to be entered when a person is ready to be discharged. This powerful tool can be used by hospitals to ensure that the person is compliant with the discharge plan developed by the treatment team. The actual treatment plan is made part of a 90-day court order that requires the person to comply with the plan or be taken back to court for enforcement. It can be a powerful way to emphasize accountability and allow the person to understand the court is still interested in them and is holding them accountable to the plan. Some call this therapeutic jurisprudence. 

Another tool that is available is a health care power of attorney. All people should have a power of attorney for health care (POA). A person with chronic mental health issues should especially have a power of attorney for health care so they have a decision maker in the event they are unable to make decisions themselves. A POA is a very powerful tool and can be used to allow an agent to have access to a treater when the person stops taking their medication, when changes are evident, or when the person is in need of treatment but does not have the insight to understand their need for treatment. An agent can take appropriate steps to arrange for the care necessary. 

A major shortcoming of the POA for persons with mental health issues is that the POA is revocable at any time. Thus, often when the POA is needed, the person will revoke the POA leaving the agent with no authority to act.

The third tool to be considered upon discharge is a mental health treatment declaration (MHTD). This tool is needed to address and fill the gap when the POA is revoked. The MHTD covers three primary powers. The attorney in fact or agent under the MHTD has the authority to admit to a psychiatric facility for up to 17 days, provide written and informed consent for psychotropic medication and/or written and informed consent for electroconvulsive therapy (ECT). The MHTD is good for up to three years and is not revocable when the person is found to be incapable of participating in mental health decisions.

Each one of these tools should be a part of every discharge plan contemplated by the hospital upon discharge. They rarely are. If these tools were used, they would enhance discharge plans and make it more likely that re-hospitalizations would not be necessary. 

The three-legged stool of mental health provides a strong base for success in the treatment of persons with mental health issues. Our experience is that a strong stool will enhance the success of mental health treatment for even the most difficult treatment resistance cases.

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This article was provided by Joseph T. Monahan, MSW, JD, ACSW, the founding partner of Monahan Law Group, LLC, in Chicago. The firm focuses its practice in mental health, confidentiality, guardianship, probate and health care law. He may be contacted at jmonahan@monahanlawllc.com