Chapter 3: Mental Health Treatment (Probation and Supervised Release Conditions)

A. Statutory Authority

Under 18 U.S.C. § 3563(b)(9), the court may provide that the defendant “undergo available medical, psychiatric, or psychological treatment, including treatment for drug or alcohol dependency, as specified by the court, and remain in a specified institution if required for that purpose.”

B. Sample Condition Language

You must participate in a mental health treatment program and follow the rules and regulations of that program. The probation officer, in consultation with the treatment provider, will supervise your participation in the program (provider, location, modality, duration, intensity, etc.). [[You must pay the costs of the program.] [You must pay [$___ per ___ (e.g., visit, week, month)] or [___ % of the costs of the program.]]

You must take all mental health medications that are prescribed by your treating physician. [[You must pay the costs of the medication.] [You must pay [$___ per ___ (e.g., week, month)] or [___ % of the costs of the medication.]]

C. Purpose

1. This condition serves the statutory sentencing purposes of public protection and rehabilitation. 18 U.S.C. § 3553(a)(2)(C) and (D).
2. This condition enables the probation officer to satisfy the statutory requirements to keep informed as to the conduct and condition of the defendant, report the defendant’s conduct and condition to the sentencing court, and aid the defendant and bring about improvements in his or her conduct and condition. 18 U.S.C. §§ 3603(2)-(3).
3. Social science research suggests that correctional interventions that follow the principles of evidence-based practices (e.g., the risk principle, the need principle, and the responsivity principle) promote positive change in the defendant and reduce the probability of recidivism. According to the responsivity principle, interventions should be delivered in a style and mode that is specifically responsive to the learning styles and abilities of defendants. Defendants with mental health disorders may have different learning styles and thus respond more readily to some techniques than others. Mental health disorders may be a barrier to effective correctional intervention (see: Chapter 1, Section III(A)(1)).
4. Social science research indicates that people diagnosed with a mental health disorder and no substance abuse issues are no more likely to become violent than the general population. Nevertheless, there is an ethical responsibility to assist in the improvement of an individual’s stability and ability to function in a deinstitutionalized setting.
5. Social science research indicates that people diagnosed with co-occurring disorders (i.e., mental health disorders and substance dependence) show rates of violence greater than the general population.
6. Defendants who suffer from mental disorders may be hampered in their ability to respond to supervision requirements, for example, by cognitive impairments, delusions, and side effects from medications. Defendants who suffer from mental disorders often require more intensive monitoring and specialized treatment. Supervision may stabilize them so that they do not present a danger to themselves or others and reduce the risk that they will commit future crimes.

D. Method of Implementation

1. Considerations for Recommendation of Special Conditions
   1. The condition should clearly indicate that the order for evaluation and treatment is a court order or directive and not inadvertently delegate this authority to the probation office. Probation officers should avoid language ordering the defendant to participate in evaluation and/or treatment “if directed by the probation officer.” They should, however, use language that permits the probation officer discretion in determining how, when, and where treatment is to occur.
   2. The condition should be so worded that the probation officer, in consultation with the treatment provider, can adjust the modality, duration, and intensity of treatment to the risk and needs presented by the defendant.
   3. When evaluation and treatment services are ordered, defendants should be required to pay for these services to the degree that they are financially able. The collection of reasonable co-payments for services meets both administrative and treatment objectives. It provides good stewardship of public money and ensures that limited funding resources are used for maximum benefit. Collection also meets the treatment purpose of providing a symbol for defendants of their investment in the treatment process. Collecting even minimal co-payment supports this latter purpose and has been shown to improve treatment outcomes. It is also important that the wording of the requirement to contribute to the cost of treatment does not inadvertently delegate the establishment of the amount of the co-payment to the probation officer. Districts are encouraged to establish a court-approved sliding scale for treatment services that is responsive to changes in a defendant’s financial circumstances.
   4. When medication is ordered by the physician, the defendant must comply with the medication regime. Defendants may experience negative side-effects from psychotropic medications. Probation officers cannot allow or give permission to defendants to alter or terminate a medication regime. If negative side-effects are identified, probation officers must report this information to the prescribing physician for follow up.
   5. There may be cases where defendants have a history of mental health problems, but are nevertheless categorized by an actuarial instrument as low-risk. After a professional assessment has been completed and if treatment is not recommended, the probation officer should consider requesting that the court remove or suspend the special condition.
2. Correctional Interventions and Strategies
   1. A mental health disorder is a condition in which a defendant exhibits behaviors or feelings that deviate substantially from the norm. Mental health disorders may range from anxiety and depression to more chronic disorders such as bipolar disorder and schizophrenia.
   2. The supervision demands of defendants with mental health disorders may require additional monitoring and supervision, specialized treatment, more flexibility and patience on the part of the probation officer, and communications strategies that are firm yet non-confrontational.
   3. Depending on the type and severity of the problem, defendants with mental health disorders may present a danger to themselves, family members, the probation officer, and/or the community and may be limited in their ability to associate actions with consequences and/or to conform their behavior to meet supervision objectives and expectations.
   4. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition defines the symptoms and behaviors of mental disorders. This manual is the authority in classifying mental health disorders. Probation officers working with defendants with mental health disorders should be familiar with this manual to help them interpret information found in psychiatric or psychological evaluation reports, communicate with treatment providers, and identify individuals with mental disorders.
   5. For individuals who are released to the community after a period of detention or imprisonment, case planning should start as soon as the probation officer receives the case. Attempts should always be made to ensure a seamless transition so the continuum of care is not broken. This is especially important when managing a mental health treatment case. The unique needs of the mental health defendant must be considered, such as medication management, availability of psychiatric treatment, and past relationships with therapeutic providers.
   6. Reentry planning is especially important for defendants requiring ongoing psychotropic medication management. Defendants being released from the Bureau of Prisons should have up to a 60-day supply of all medications currently prescribed. Probation officers must make appropriate referrals for evaluation and treatment to ensure that the defendant will be provided with prescriptions for medications as needed.
   7. A thorough understanding of the defendant’s mental health issues and current status is an essential first step in establishing an effective supervision plan. Developing this understanding may require two processes: screening and assessment. The screening process places the defendant in one of two categories – a well-documented mental health disorder or an uncertain mental health disorder. Defendants who come to supervision with a recent and well-documented history of mental health disorder(s) do not require an initial screening. Using the available documentation, the probation officer can make decisions about further assessment. Defendants who come to supervision with indications of a mental health disorder or a distant history of a mental health disorder, but no special condition for mental health services, may require the administration of a validated screening instrument. This screening can be conducted by a probation officer using a validated instrument or by a qualified mental health professional. When screening and/or other case information indicates the possibility of a mental health disorder, a clinical assessment by a clinician is typically the next step in the correctional intervention process.
   8. The type of treatment that is provided to a defendant can make a significant difference in the degree of success that is realized. The goal is to match the defendant to a treatment that best addresses his or her risk and needs. Probation officers are responsible for being sufficiently knowledgeable about mental health disorders and available mental health services. The probation officer acts as a broker of services for defendants with mental health disorders.
   9. The mental health provider decides the particular treatment approach. The treatment plan should be collaboratively developed by the treatment provider, the probation officer, and the defendant. It should address the modality, intensity, and anticipated duration of treatment. Although the development of the treatment plan is a collaborative process, the probation officer is ultimately responsible for ensuring that the provider is aware of any changes in the defendant and his or her environmental, social, and/or supervision status.
   10. In keeping with the underlying supervision philosophy of proportional intervention (see: Chapter 1, Section II(C)(1)), it is important that the intensity of treatment match the specific treatment needs of a defendant.
   11. Once a treatment referral is initiated, the probation officer should arrange a meeting with the defendant and the clinician. During this initial meeting, an individualized treatment plan should be developed that clearly outlines the goals and objectives of treatment and the methods that will be used to achieve those goals. The defendant should use this meeting to address any concerns the defendant has and help strengthen the relationship between the defendant and the clinician. The probation officer should clearly state his or her role in monitoring the treatment plan.
   12. Defendants with co-occurring disorders (i.e., mental health disorder and substance dependence) should receive services in an integrated fashion. When receiving integrated treatment services, defendants’ needs are treated by the same clinician and/or team in the same location. When an integrated treatment approach is not available, it is essential that the officer ensure effective communication and consistency between treatment providers.
   13. Counseling alone is not always effective. Medication-assisted treatment may provide the necessary symptom stabilization to improve the success of treatment. These medications must be prescribed by a psychiatrist, other medical doctor, or a qualified practitioner with prescriptive authority. Probation officers should be familiar with the intended effects and side effects of medications taken by the defendants they supervise. Probation officers should contact the prescribing physician or pharmacy for information regarding medication uses, side effects, and potential problems.
   14. Probation officers are to use positive incentives to encourage prosocial behavior and reinforce progress toward objectives. The usefulness of positive incentives should not be underestimated. Research indicates that rewards are more effective than sanctions at influencing long-term behavior change. Incentives must be implemented in a swift, consistent, and graduated manner. Incentives are provided by adding a positive reinforcement or taking away an existing sanction or restriction. Probation officers must modify supervision plans to reflect earned achievement incentives, such as reduced restrictions or less frequent contact.
   15. Although defendants diagnosed with mental health disorders are no more violent than the general population, when a defendant begins to show signs of decompensation, his or her risk of violence may increase. If the probation officer observes or receives information that a defendant is exhibiting behavior consistent with mental health decompensation, the probation officer must take steps to ensure the safety of the defendant, the community, and himself or herself.
   16. Probation officers must always take threats of violence against themselves or others seriously and must respond immediately to any indication that the individual may be suicidal or homicidal. The probation officer’s role in any mental illness decompensation leading to threats of violence is to ensure the safety of the defendant, the community, and himself or herself. The strategies include ceasing home contacts, notifying the local mental health crisis unit or local police department for a health and welfare check (e.g., to assess for emergency mental health commitment), notifying the treatment provider, and notifying any third party at risk.
   17. To assist the defendant in transitioning from a formal treatment relationship to a community-based aftercare program that is managed by the defendant and monitored by the probation officer, the probation officer should be aware of community-based programs and services that aim to help defendants with treatment needs or provide support. Ongoing communication with the defendant’s social network is essential after formal treatment services conclude to ensure that the defendant is in compliance with the aftercare plan in the community.