When a Pierce County judge declared last spring that it was unconstitutional to put involuntarily committed residents in emergency rooms, officials successfully pleaded for a delay in the ruling so they could “think about” new ways to “attack the problem” of not having enough treatment beds for mentally ill residents.
Six months and zero policy changes later, the state is headed back to court to request another delay.
Superior Court Judge Kathryn Nelson will decide Tuesday whether to extend her stay, weighing civil liberties and community safety in the latest in a highly charged and closely watched case that could affect the entire state.
Nelson said after her ruling that she was “reluctant at this point to stay it any longer than six months.”
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But state officials, who are appealing the ruling, plan to argue that if Nelson does not extend the stay, they will have no choice but to release dangerous people to the streets when no treatment beds are available.
“If the Court does not continue the stay of its Order pending the conclusion of the appeal,” state lawyers wrote in a court brief submitted last week, “the petitioners will have no options for detaining individuals who meet detention criteria when no certified bed are available.”
The argument gets to the heart of the debate over so-called “psychiatric boarding,” when a mentally ill resident is detained to be treated, then forced to wait for treatment.
The Seattle Times reported in October that boarding took place 4,317 times in Washington state in 2012 — more than double the number in 2010.
In King County, boarded residents wait for an average of three days — and as long as three months — in chaotic hospital emergency departments, untreated, often tied to beds to prevent them from hurting themselves.
State officials agree it is not ideal but argue boarding is better than leaving dangerously mentally ill patients on the streets. They say it is necessary because of increasing commitments and decreasing treatment beds.
Washington ranks at the bottom of the country in psychiatric-treatment beds per capita, according to several recent studies.
Pierce County public defenders questioned boarding’s constitutionality early this year, arguing in an individual involuntary-commitment hearing that it was wrong for the committed resident to be detained by his government without receiving treatment.
In a surprise decision, the court commissioner agreed, and Judge Nelson did, too.
“We don’t detain people and restrain their liberty without providing them care and treatment,” she said, summarizing her decision. “We don’t house them in one room, whether the jailer is the Tacoma/Pierce County Jail or whether the jailer is a nurse in a hospital.”
Nelson granted the stay after a contentious hearing in which state lawyers raised the issue of leaving dangerous residents on the streets and talked of the need to “have discussions” and “look for any other alternatives.”
In reality, little has changed since the ruling except for new rules making it even easier to commit mentally ill residents, and $23 million to fund the expected increased commitments.
Pierce County is expected to get about $5 million of that, while King County could get nearly $2 million, according to the state.
Aside from the money, “nothing further has changed in policy or practice,” acknowledged Chris Case of the state Department of Social and Health Services.
If anything, “the situation of boarding has gotten worse,” said Chris Jennings, Pierce County’s top public defender.
Jennings said he plans to argue Tuesday that state officials “really haven’t done anything to take advantage of the stay, so they shouldn’t get any more time.”
It is unclear who will win.
Even if Nelson ends her stay, the state can ask the appeals court considering the case to issue a stay of its own.
Ken Nichols, a Pierce County prosecutor working with the state, declined to speculate about contingencies.
“We just don’t know,” Nichols said. “They don’t give me a crystal ball in this job.”
Brian M. Rosenthal: 206-464-3195 or firstname.lastname@example.org. On Twitter @sbrianmrosenthal