Probate judge honored for his efforts on behalf of mentally ill

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By John Minnis

Legal News

For many, social causes are triggered by deeply personal events in their lives, such as the needless death of a loved one.

For Wayne County Probate Court Chief Judge Milton L. Mack Jr., who was awarded recently for his work on behalf of the mentally ill, his crusade began with a disturbing observation.

"I've been a probate judge for 20 years," he says. "Ten or 15 years ago, I noticed we were seeing the same people over and over. It seemed to me the system was not working."

In December 2003, Gov. Jennifer Granholm formed a Michigan Mental Health Commission to examine the state of mental health care in Michigan and bring back recommendations. Mack was the only judge named to the commission.

"That was an eye-opener," Mack says. "I saw the bigger picture, not just probate. I saw how it ran through the entire system."

In fact, he wrote a treatise on the topic, "Involuntary Treatment for the Twenty-First Century," published in The Quinnipiac Probate Law Journal. He also co-wrote, with Genesee County Probate Chief Judge Jennie E. Barkey, "Decriminalizing Mental Illness."

Mack gives frequent talks to judges, courts, attorneys, educators and law enforcement and has testified before numerous legislative committees. He has refined--and shortened--his presentation over the years, yet he hasn't pulled any punches.

"If the system were working," he says, "we would have fewer people who are homeless or in prison."

For his efforts, Mack received the William W. Treat Award for Excellence from the National College of Probate Judges at its annual fall meeting Nov. 7-10 in Charleston, S.C. Mack was the first Michigan recipient of the Treat Award. U.S. Supreme Court Associate Justice Sandra Day O'Connor is among past award recipients.

"It's typically goes to law professors and judges," Mack says.

Nominations for the Treat Award are submitted from all over the country. Fellow Chief Probate Judges Susan L. Dobrich of Cass County and Patrick J. McGraw in Saginaw County led the effort to nominate Mack.

Others writing letters to the Treat Award Committee on Mack's behalf included Judge John A Hohman Jr., president of the Michigan Probate Judges Association (which Mack once headed); Michigan Supreme Court Justice Elizabeth A. Weaver (2009); Leon Judd, president of the National Alliance on Mental Illness; all seven of Mack's fellow Wayne County Probate judges; former State Attorney General Frank J. Kelley; Kent County Probate Chief Judge David M. Murkowski; Paul E. Tait, SEMCOG executive director; Brian M. Connolly, president and CEO of the Oakwood Healthcare Inc.; and Midland County Probate & Family Judge Dorene S. Allen.

Mack's "brief" introduction to mental health begins in the 19th century with Dorothea Dix.

Dix was one of three children born to a drunken, itinerate Methodist preacher and a mentally ill mother. While she faced an abusive childhood and was forced to be the caregiver for her younger siblings, Dix benefited from her father early on when he taught her to read, which was uncommon for women in the early 19th century.

The Dix children went to live with a wealthy grandmother in Boston. Dorothea took an early interest in teaching and formed a school for girls--both wealthy and poor--in her grandmother's Boston mansion. She was also an author of children's books.

In 1841, at the age of 39, Dix's life changed when she entered the East Cambridge Jail to teach Sunday school for female inmates. There she found prostitutes, drunks, criminals, retarded individuals and the mentally ill locked in unheated, unfurnished and foul-smelling cells.

When she questioned the horrible conditions, she was told, "The insane do not feel heat or cold."

"Back in those days," Mack explains of the mentally ill, "the lucky ones were locked up in the attic or chained in a cage in the backyard. And those were the lucky ones."

Dix took the matter to the Massachusetts courts and prevailed. She then toured all the jails, almshouses and other places where the mentally ill were kept throughout Boston and the state. She took meticulous notes and presented her findings to the state legislature. Her lobbying succeeded in getting the lawmakers to expand the Worcester State Hospital.

She then took her crusade outside Massachusetts, visiting hospital, jails, almshouses and privately contracted institutions in every state east of the Mississippi. She was instrumental in founding 32 mental hospitals, 15 schools for the mentally impaired, a school for the blind, training facilities for nurses and libraries in prisons, mental hospitals and other institutions. Her efforts also inspired the building of many additional institutions for the mentally ill throughout the United States. She was also instrumental in reform for the mentally ill in England and Europe.

During the Civil War, Dix served as Superintendent of Union Army Nurses.

"She started the movement to get the mentally ill out of prison and into treatment," Mack says, adding that there are more than 300,000 mentally ill incarcerated today with the Wayne County jail among the highest mentally ill populations. "We're right back to 1841. We're right back to where Dix was."

The chief probate judge relates a case where one mentally ill prisoner asked for more jail time so that he could continue to receive treatment for his illness.

"When the mentally ill have to beg the judge for more jail time to get more treatment," Mack says, "there's something wrong. I didn't want to be a party to it."

Mack and the Michigan Mental Health Commission found that that the Michigan Mental Health Code and statutes do not reflect modern times.

"We have an inpatient system in an outpatient world," he says.

In the mid-1950s, according to Mack's treatise in The Quinnipiac Probate Law Journal, there were 559,000 people in public psychiatric hospitals in the United States, with over 20,000 in Michigan alone. In 1963, President Kennedy signed the Community Health Act with the goal of reducing the psychiatric hospital population by 50 percent in 10 years.

The federal government agreed to pay for the treatment of the mentally ill unless they were adult patients in state or private mental health hospitals, providing legislators with a huge financial incentive to deinstitutionalize mental health treatment and to rely on the federal government to pay for the care of the mentally ill.

The Michigan Constitution of 1963 also called for the state to not only support "institutions" for the mentally ill, a provision from previous constitutions, but also to support "programs and services" for the care of the mentally ill. The current Mental Health Code adopted in 1974 reflected the change and led to the move from an institutional-care model to a community-based treatment and support model.

Mental health treatment in Michigan is now provided by 49 county or regional Community Mental Health boards "all with different ways of doing things."

"If you're mentally ill in this state," Mack says, "you are not a resident of the state but of a Community Mental Health board."

Also during this time, Michigan, like most states, became entirely dependent on Medicaid for providing mental health funds. Those who were not Medicaid-eligible and lacked private insurance were unable to get help. Further, Medicaid does not cover care in "Institutions for Mental Disease," including psychiatric hospitals and many community-based residential facilities for the mentally ill.

Exacerbating the problem is the fact that once a mentally ill patient recovers sufficiently to get a job, Medicaid is discontinued, and unless the employer provides health insurance that includes coverage for mental illness, the newly employed is out of luck. The choice faced is a job or mental illness treatment but not both.

In the 1990s, six state psychiatric hospitals for adults were closed. The former mental patients did not migrate into Community Mental Health facilities, however, but rather into the streets and, more commonly, jail.

The underlying problem with mental health treatment today, Mack says, is that it is not treated like any other disease, this despite modern research that shows mental illness is treatable and that, like all disease, early treatment is crucial.

As a probate judge, Mack is most consternated by the fact that the court or a guardian cannot intervene on a ward's behalf and order treatment for mental illness. A guardian can intervene in life-ending decisions and even amputation, but that same guardian cannot insist on treatment for mental illness.

Another issue, Mack says, is the state's focus on conduct. A mentally ill person has to be deemed a danger to himself and others before he (or she) can be ordered to get treatment. However, many times the individual must actually harm himself or others before anything is done. Again, the mentally ill often do not get the medical attention they require until they become wards of the corrections system.

Mack and other mental health advocates call for a complete rewriting of the Michigan Mental Health Code, allowing for early intervention and ongoing treatment.

"Our mental health system is hopelessly outdated and ineffective," Mack wrote. "The evidence is everywhere. Our jails and prisons are overflowing with people whose only real crime was their inability to obtain timely treatment for their mental illness."

"It can be done," he says of revamping the mental health code, "but it will take leadership. It will reduce crime, reduce the number of victims. There are enough benefits to doing this that it should appeal across the board."

In receiving the Treat Award, Mack says he was "honored and intimidated at the same time, because I know who Judge Treat was."

Judge William W. Treat was founder and President Emeritus of the National College of Probate Judges and a well-regarded diplomat and judge. After graduating from Columbia Law School and Harvard Business School, Treat served as a probate judge in New Hampshire for 25 years. He was the secretary of the U.S. Electoral College from 1956 to 1964 and in 1987, President Ronald Reagan appointed Treat to serve as a delegate to the U.N. General Assembly, a post President George H.W. Bush again offered Treat in 1990.

"He died just in the last year," Mack says of Treat. "I was the first to receive the award since he passed."

Mack points out that Treat believed judges should be involved beyond sitting in the courtroom.

"I promised them I would continue to work on this and that I would continue to be inspired by Judge Treat," Mack says. "Judges are a good resource for lawmakers in Lansing."

Published: Tue, Nov 23, 2010

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