Better way needed to deal with Baker Act admissions

Cleveland Clinic Vero Beach

The first court hearing is likely not the last in the case of the shooting death by sheriff’s deputies of a mental health patient at Cleveland Clinic Indian River Hospital.

The hospital system is seeking an injunction against the Indian River County sheriff’s department to keep the sheriff from publicly releasing the hospital’s security camera video of the incident, as the sheriff is eager to do.

The sheriff, who obtained the video through a subpoena along with the patient’s clinical medical records, believes it exonerates his two SWAT team deputies who shot the patient as he came at them with a pair of scissors a month ago.

In addition to the hearing this week, a grand jury is expected to review the deputies’ actions to see if state laws were broken in the shooting.

While attorneys wrangle over issues in a case that drew headlines far from Florida, local officials are working on how to prevent such an occurrence in the future. Blame for the shooting death may not be assigned for years to come, but mental health advocates and hospital executives are working intensively to change the system now.

The tragedy comes after millions of donor dollars and Cleveland Clinic’s own funding were spent in recent years to greatly improve – and make safer – the Cleveland Clinic Behavioral Health Center, a 46-bed facility and designated Baker Act receiving facility for adults and children across the street from the hospital.

Among the improvements: a new side entrance that enables arriving patients to go directly into the facility, bypassing the front lobby where visitors and other patients are often present.

Countless safety measures including cameras in the parking lot, a previously unsecured door made secure, and GPS guided panic buttons for staff have been added; that last addition, to quickly pinpoint the location of a staff member in the event a patient turns violent.

Adding beds to the Behavioral Health Center, a long-term and expensive option, had been discussed even before this recent incident, according to Hospital District Chairman Marybeth Cunningham. It would be the most ambitious solution to getting a patient in crisis into a safe and more dignified environment.

The patient who died, a 29-year-old software engineer and avid skydiver from Sebastian who according to Sheriff Eric Flowers was suicidal, waited as long as 30 hours on a gurney in the ER hallway prior to the incident.

Determining the need of inpatient mental health beds – the most intensive level of mental health care – is difficult, in part because ample outpatient services can be enough to get some people through a crisis, if they are available. On the other hand, such outpatient services can actually serve to increase the need for beds if they identify more patients in crisis.

Brett Hall, who leads the county’s Mental Health Collaborative, last week told the Hospital District that the service most in demand of late is therapy, the kind of counseling with a psychologist or social worker that typically is sought at the early signs of depression, anxiety, grief or anger management.

While the state as a whole has enjoyed a rapid rise in mental health counselors, they are not moving to Vero or Sebastian. Hall didn’t get into numbers, but according to Florida Health Charts, the rate of counselors per 100,000 jumped by 10 to 57.3 in the state from 2016 to 2020, but only rose by 3 per 100,000 to 39.2 in Indian River County.

The rate of licensed clinical social workers grew by only a third as much as the state average.

There are only about half the number of marriage and family counselors here per 100,000 residents as there are in the state as a whole. And the rate here is in decline: It used to be much higher than the state average, at 9.5 per 100,000 in 2016. By 2020, the county’s rate had fallen to 5.7 per 100,000 residents.

The county has seen a growing number of psychologists in the past 20 years but Indian River is still slightly below the state average.

Hall says much of the problem has to do with insurance; many providers now accept only private pay. Hall has started calling retired psychologists, hoping to get them to see patients pro bono.

Hall has ambitious ideas for drawing more mental health practitioners to town. He told the District Board he is contacting college campuses and recruiting graduates in need of internships, hoping to retain them when their required hours are up.

“What we envision is having a huge student practicum fair once a year,” he told the Hospital District last week. Those young recruits may help staff the beds at the Behavioral Health Center.

They may even fill openings should the hospital decide to hire social workers for the ER, a quick fix under discussion that could prove life-saving if a trained eye can catch a patient headed toward distress.

Another solution being discussed, according to Cunningham, is opening a separate psychiatric emergency department – a concept that exists mostly in large teaching hospitals. There, social workers and psychiatrists are on staff full time, along with specially trained psychiatric techs and sitters.

In the meantime, Cleveland Clinic Indian River Hospital officials are talking about creating a dedicated space of “four or five beds,” according to Cunningham, for Baker Act patients to be able to wait without being exposed to the upset of the often-chaotic goings-on of emergency medical patients. That space would presumably be more secure than the largely open areas of the current ER, and easier to check for potentially dangerous implements.

“There are long-term things and short-term things that we can do,” Cunningham said. “They’ve already moved (a staff person) from the Behavioral Health Center to the ER, just to help ease that situation.” That Monday morning, she said, another four Baker Act patients had been brought in.

It didn’t take a tragedy to make mental health a top concern in successive annual community needs assessments. The dearth of inpatient beds may be sporadic, March being the busiest hospital month of the year. But there is no doubt that over the years, the shortage has gotten worse.

Even though the number of psychiatric beds in the county has remained essentially unchanged since 2002, the population has grown by a third.

In 2002, there were 32.5 adult psych beds per 100,000 residents; since then, the population has grown from 119,000 to nearly 170,000 today. That works out to a rate of just over 20 psych beds per 100,000 residents, a drop of more than a third.

Still, that number would not stand out to state officials. It is almost exactly the same as the state average, and that rate hasn’t changed significantly in two decades. By comparison, Indian River County’s inpatient mental health care was in relatively great shape 20 years ago. Now, with many more people and barely more beds, it’s as bad as it is statewide.

Florida ranks 24th in the nation for its rate of inpatient mental health beds. Its total expenditure on mental health is abysmal, ranking 46th in the nation, though that figure does not include Medicaid dollars.

One in five adults in the U.S. had mental illness in 2020, with one in 20 experiencing severe illness, of the sort that might provoke the Baker Act. Nationwide, fewer than half of those with mental illness got treatment in 2020; 64 percent of those with severe illness got treatment.

Before the pandemic, visits to ERs across the nation for mental health or substance abuse reasons amounted to 8 percent of all visits. During the pandemic, people avoided the ER if they could. But proportionally, the number of mental health visits rose even further.

The need for inpatient psych beds stems from a void left when practitioners began to release mental health patients in state hospitals, where some of them were confined for many years, too often against their will.

As so-called “insane asylums” began to close in the 1960s, thousands of mentally ill people – some of them on the road to recovery – had no safe place to go. Deinstitutionalization was a well-intended notion; but with no alternative in place, it may have resulted in increased stigma as patients formerly struggling in private suddenly became visible and vulnerable.

The Baker Act law, enacted in 1971, guaranteed patients would not be held involuntarily for examination for more than 72 hours. But the law, originally aimed at safeguarding mental health patients’ civil rights, has ended up doing the opposite, with more than half of Baker Act cases initiated by police instead of health professionals or judges.

That, the Tampa Bay Times pointed out last year as the Florida legislature considered strengthening the law, means many patients arrive at the ER in handcuffs. The per capita number of Baker Act cases has doubled in two decades, the article went on. In 2019, the latest figure available, there was one Baker Act involuntary examination for every 100 Floridians.

Children made up close to one-fifth of the 211,000 Baker Act cases that year, with some experts concerned that the surge could be linked to an increase in law enforcement on school campuses.

Anne Posey, director of the Behavioral Health Center, has a deep knowledge of mental health care in the area, including nine years at New Horizons in St. Lucie County, and facility administrator at Martin Girls Academy, a juvenile detention center. She joined the Behavioral Health Center in 2017, prior to the Cleveland Clinic takeover.

In November 2021, she was named regional director of behavioral health for Cleveland Clinic Florida, though this is the only one of the five hospitals that offers inpatient mental health care. Though the hospital declined to arrange an interview with her now, she gave an extensive tour and interview in March 2020.

Posey is herself an instructor for crisis prevention intervention, an eight-hour training done with all caregivers, “not just nurses,” she said.

“All of our staff know how to handle aggressive patients and how to do verbal de-escalation. We do a lot of training around the Baker Act law. It’s an old, clunky law and you have to have a lot of knowledge to manage through all the different things that the current law requires.”’

A tour of the Behavioral Health Center in 2021 revealed one room with an unexpected purpose: a miniature courtroom, complete with state and U.S. flags, where a judge appears on a screen to preside over the required Baker Act hearing when a patient needs to stay longer than the 72 hours the law provides for, and the patient doesn’t want to stay or they aren’t able to make that decision. “Then we have court,” said Posey.

“It’s a full-fledged Baker Act court, not mental health court. The magistrate comes with her bailiff and there are attorneys present. It’s very much a protection of the patient’s rights. I’m old enough to remember when we used to haul them down to the courthouse in a van. It wasn’t a big issue going down there because everybody thought they were leaving. Coming back was pretty dicey.”

Posey held a meeting days after the shooting incident with a broad coalition of mental health providers. According to Brett Hall, who was in attendance, she led off with a declaration: Don’t think about costs, just come up with solutions.

“I’d like to commend Anne Posey for her leadership after that event,” Hall told the Hospital District Board. “She pulled us together quickly, and the whole conversation was ‘Money aside: What do we do in the short term and what do we do in the long term to make sure that this never happens again.’ I was really pleased at some of the ideas that came out of that.”

For the patient who never made it out of the emergency room, the search for a bed in a Baker Act receiving facility extended to adjacent counties that Saturday night. And it wasn’t just one patient.

There were seven Baker Act patients waiting in the ER that night, according to a source familiar with the circumstances. At least one of the four deputies at the nurses’ station that night was there in connection with another Baker Act patient, according to Flowers.

Typically there is one deputy in the ER, he said.

The presence of four deputies in the overflowing ER that night may have been a comfort for some – Sheriff Flowers remarked that nurses were surely thanking the deputies who fired their guns that night. “I’m sure the nursing staff of the hospital today are happy that nobody got hurt, that they’re all alive to talk about it today,” said Flowers.

But the same presence can cause anxiety in others.

The intersection of law enforcement and patients with mental illness can be fraught, experts say.

The sight of armed, uniformed officers can be triggering for some patients with past negative experiences with law enforcement, especially important considering as many as 36 percent of the prison population has diagnosed mental illness; the figure is 44 percent in local jails, according to the latest research by the Prison Policy Initiative.

Those inmates, once released, are potential patients, often cycling in and out of treatment, and sometimes through ERs.

The two spheres of public servants – law enforcement and health care workers – can treat the same mental illness as either a crime or as a disease. Slowly the sectors may be coming together in their approaches through training and understanding.

A study published last year on mental health patients and police pointed to an incident in Dallas in which a man with bipolar disorder was shot five times by police seconds into an encounter in which he refused to drop a screwdriver. Authors of the study interviewed a mental health peace officer whose crisis intervention team intentionally wore khakis and a polo shirt instead of a traditional uniform, with no visible weapon.

The team also received trauma-informed care training, a recent addition to crisis intervention to prepare officers for how their actions might affect people for whom life traumas have affected their mental well-being.

And that works both ways. Trauma-informed care also includes understanding the traumatizing effects of the work of first responders, according to a paper on law enforcement and crisis services put out by the research arm of the National Association of State Mental Health Program Directors. The paper stresses the importance of close cooperation between law enforcement, mental health providers and emergency medical providers, each with their own internal guidance systems but all hoping to care for those suffering.

In Vero Beach, every city police officer has already received mental health first aid training, a program offered by the Mental Health Collaborative to teach first responders how to recognize and deal with mental illness. At the sheriff’s department, the campaign to train deputies is just getting underway. The department would not comment on what degree of crisis intervention training the four deputies at the hospital had already had.

In recent years, local mental health leaders succeeded in getting the hospital to change its Baker Act procedure for children so that they are no longer required to go to the Cleveland Clinic Emergency Department first; they can now go straight to the Behavioral Health Center, a major improvement that spares them the trauma of the often-frenetic ER.

Adults, though, are still required to first be medically screened at the main hospital’s ER before moving over to the Behavioral Health Center. Cunningham would like to see that changed for adults so they too could skip the ER and go straight into psych care.

The patient in this case was brought by family to the emergency room as much as 30 hours earlier, according to Flowers. He was waiting for a bed to free up at one of the area’s four Baker Act receiving facilities: Circles of Care in Melbourne; Lawnwood Hospital in Fort Pierce; New Horizons in south St. Lucie County; and Cleveland Clinic’s own Behavioral Health Center across the street from the hospital.

According to a source familiar with the matter, the patient who died was under the supervision of a nurse and a patient sitter. He was resting on a gurney near the first in the ER’s circle of patient rooms, and had stood up calmly “to stretch his legs.”

Somehow, he got hold of a pair of scissors and made his way in his hospital gown through a short central hallway. On the only bodycam known to have been worn and working among the four deputies, the patient comes into view as he rounds a corner at the nurses’ station at the center of the circle of rooms.

Hearing a commotion, according to Flowers (the audio isn’t turned on in that portion of the body cam video), one deputy suddenly turns to face the patient, extending his arm toward him.

Two deputies, both on the SWAT team and including the one on duty for the hospital, line up directly in his path. Four seconds later, the patient lay on the floor dying, shot by both deputies after he raised the scissors in the air and approached them.

A sheriff’s spokesperson said the other three deputies’ bodycams “were not operating at the time.”

Within hours of the shooting, Flowers had subpoenaed the hospital’s security camera video as well as the patient’s medical record.

By the time he held a press conference the next day, a copy of the hospital video was on his phone. He showed it to two reporters. The video showed more of the patient’s forward motion than the deputy’s bodycam, VeroNews previously reported.

Flowers also may have shared it with mental health officials from around the county at a meeting of the Mental Health Collaborative, according to Marybeth Cunningham of the Hospital District, who spoke with attendees afterwards. The security camera video “doesn’t make anybody else feel (the deputies) were totally in the right,” she said.

In their motion for a temporary injunction, Cleveland Clinic Florida’s lawyers cited federal HIPAA law and the Baker Act, and asked the court to preclude the sheriff from “releasing photographs, video recordings, audio recordings, private medical information and all other statutorily protected information concerning patient John Doe’s death,” including through public records requests by the media.

The hospital also filed for a permanent injunction on releasing the patient’s records.

“The Hospital believes it is important for the Court and the parties to preserve the dignity of the patient who was experiencing a mental health crisis and to demonstrate compassion for his family especially in connection with graphic video that depicts the patient’s death and last moments of life,” the hospital said in its filing.

“Defendant (the sheriff) has already publicly released officer body cam video of the incident and at a recent press conference stated affirmatively that he will release the Hospital surveillance video to the public. The Hospital has attempted to reach resolution with the Sheriff concerning release of the video without success.”

The hospital called the shooting a “tragic loss of life.”

Four days after the filing, on the day Flowers was emailed the summons for the hearing, he posted a statement on the sheriff’s office Facebook page: “I have been fighting to release the video of the incident recorded inside of the Emergency Department. I was on scene that night and viewed the video which, in my opinion, shows the deputies had no choice but to take the action they did to defend their lives and the lives of others in the ER.

“I know many questions still remain unanswered, but having seen the video myself, I can assure you our team responded appropriately based on their training and I stand by their actions.”

The hearing was scheduled for this past Tuesday (April 26) before Circuit Judge Janet Croom. It’s not known when she will issue a ruling.

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