Commitment Crisis: DHS violates Minnesota’s ’48-hour law’ on mental illness treatment

After spending most of her life trying to help her son deal with serious mental health issues, Cheryl Heath thought he had reached a turning point.

“He said, ‘I have to change my life. I’ll lose everything if I don’t do it,'” Heath said.

Shakopee Police arrested 27-year-old Anthony Blake Swope at Saint Francis Hospital in June after what his attorneys described as a “psychotic” episode in which Swope was accused of kicking a security guard while he was being held.

After doctors found him unfit to stand trial, a judge ordered him to be treated in a locked-down state mental hospital – an extreme move that Swope’s lawyer Kevin Wetherille says his client welcomes him.

“He didn’t fight it,” Wetherille said. “He actually told the court, ‘I agree with that. I want to go to the hospital and I want to get help.’”

But Swope waited in prison for almost two months before finally getting the help he needed, despite a judge’s order and a state law designed to ensure expedited treatment.

This law requires the Department of Human Services to transfer inmates to a government facility within 48 hours of a civil obligation.

Swope served 57 days in the Scott County Jail.

“I screamed at the top of my lungs and told everyone, ‘This is only going to get worse,'” Heath said.

DHS finally Swope moved to a state hospital earlier this monthbut there are still dozens of inmates waiting for weeks and even months to be transferred.

“It’s frustrating because we want to serve people, we want to bring people to treatments,” said KyleeAnn Stevens, executive medical director of behavioral health at DHS. “We don’t want people in prison waiting for treatment.”

However, a review of court records by 5 INVESTIGATES shows that DHS has repeatedly violated Minnesota’s “48-hour law” over the past two years.

The violations recently led to harsh reprimands from sitting judges, who ordered DHS officials to appear in court to explain why the state’s largest agency can’t obey the law.

“I’ve never seen a law where there’s just one blatant noncompliance, and it’s not even close,” Scott County Judge Christopher Wilton said in September.

Not enough beds

DHS declined a request to speak with Commissioner Jodi Harpstead.

In a 15-minute interview with 5 INVESTIGATES, Dr. Stevens credited the agency’s efforts, blaming a shortage of psychiatric beds for the violations.

“It’s not just a problem with our facilities,” Stevens said. “We are doing what we can to meet the need and we are fulfilling the intent of the law to bring people into treatment.”

DHS attributes the lack of psychiatric beds in its facilities to four main factors:

  • Increasing court cases through the civil liability procedure
  • Delays in transferring stabilized patients from government hospitals
  • staff shortage
  • Ongoing impact of COVID-19 limiting capacity

DHS says it has made changes to improve the capacity of the Anoka Metro Regional Treatment Center (AMRTC) — a high-security psychiatric facility where most inmates are sent after a civil obligation.

In Swope’s case, DHS found a bed at one of its lower-certainty Community Behavioral Health Hospitals (CBHH) after Swope was reevaluated.

But Swope was only transferred after his attorney filed a lawsuit against DHS.

“Why did they only act after they were sued?” Wetherille said. “This decision could have been made months or weeks earlier and I am concerned as to why that was not the case.”

Judges proclaim DHS

Violations of the state’s 48-hour law are now commonplace caught the attention by at least two Scott County judges.

“I think about what would happen if we took every other law and people looked at it and said, ‘We’re doing our best, but we’re not going to comply, we can’t do it, we do it . I don’t want to comply,'” Wilton said.

Wilton first raised concerns almost three months ago.

An inmate has been in the county jail for nearly a month after doctors diagnosed him with developmental disabilities and “severe psychiatric disorders.”

Brandon Charles Hegg-McLaughlin was found unfit to stand trial on drug charges and placed in the care of DHS, but he ended up waiting about 60 days for the agency to transfer him to a state hospital.

“We are dealing with people, not statistics, not numbers, not beds. That’s not who Mr. Hegg-McLaughlin is. There must be an answer for Mr. Hegg-McLaughlin and all the other people who are in our prisons,” Wilton said during a court hearing.

Attorneys for the Minnesota Attorney General representing DHS have repeatedly rejected the court’s power to compel the agency to take additional action in cases involving inmates with civil obligations.

That didn’t stop Scott County Judge Colleen King from calling DHS again this month.

“There are countless other individuals who are languishing in prison because the issue hasn’t been addressed,” King said at a hearing. “Wrongful Detention is not the United States of America.”

Early Warnings

Delays that force inmates to spend extra days, weeks, or months in a cell instead of a hospital bed are a particular burden for jails like Scott County’s.

Sheriff Luke Hennen says his staff are on the “front end” of this growing crisis.

“A lot of people come and go who are just having their medication stabilized,” said Hennen. “So you only ever put out the fires.”

Hennen and others point to a 2016 report by the Office of the Legislative Auditor warning of violations of Minnesota’s 48-hour law.

The report found that the availability of “safe inpatient beds” was “insufficient” to meet demand six years ago.

The same report added that “delays in admitting people for treatment … may increase the risks of county jails and potentially affect the health or safety of the patient, fellow inmates and prison staff.”

Hennen said the problem isn’t getting better.

According to an affidavit filed with the court, the number of people referred from prisons to DHS increased from 111 in 2014 to 340 so far this year.

“If the courts rule that (a) person should no longer be in our custody… we have to play this waiting game. It’s very challenging, frustrating,” said Hennen.

But not everyone believes that frustration should be directed solely at DHS.

“I think the law itself is flawed,” said Sue Abderholden, executive director of the National Alliance on Mental Illness (NAMI) in Minnesota. “I know the sheriff won’t like it if I say this, but it had unintended consequences for people who needed care in the community.”

Abderholden says prioritizing psychiatric beds for prison inmates comes at the expense of others awaiting treatment and not subject to the 48-hour law.

“To be honest, I won’t blame DHS. They are struggling to meet the needs of the people of Minnesota who need this type of care,” Abderholden said. “You can’t just wave your wand and have another bed…it just doesn’t work that way.”

Calls for transparency

Right now, Scott County judges are not giving DHS the benefit of the doubt.

Last week, Judge King ordered DHS to take action in the case of another inmate, Tokvan Ly.

The state must now find a hospital bed for Ly or explain why it cannot.

Ly has been in prison for three weeks since being admitted for treatment for schizoaffective disorder.

His attorney, Jim Conway, sued DHS and is now urging agency leaders to be more transparent about getting help for those who need it.

“That would be a way of leading — explaining with transparency what’s going on, and then trying to propose some kind of real solution based on the resources you have,” Conway said. “But what actually happens is, ‘Judge, just hire this person and everything will be fine.'”

Cheryl Heath says she will continue to fight for her son but acknowledges many others awaiting treatment have no one outside to fight for them.

“Somebody’s job is to make sure these people are taken care of… It doesn’t matter how many facilities we have if there isn’t a voice for these people in the system,” Heath said. “It’s just a big cycle that won’t stop until we close the doors of that cycle.”

Leave a Reply

Your email address will not be published. Required fields are marked *