Commitment Crisis: DHS violating Minnesota’s ‘48-hour law’ for mental health treatment

After trying to help her son manage severe mental health issues for most of his life, Cheryl Heath thought he had reached a turning point.

“He said, ‘I need to change my life. I’m going to lose it all if I don’t,'” Heath said.

Shakopee Police arrested Anthony Blake Swope, 27, in June at Saint Francis Hospital after what his lawyers describe as a “psychotic episode” in which Swope was accused of kicking a security guard while being restrained.

After doctors found him incompetent to stand trial, a judge committed him to treatment in a locked state mental hospital – an extreme step Swope’s lawyer, Kevin Wetherille, says his client welcomed.

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

But Swope waited in jail for nearly two months before he finally received the help he needed, despite the judge’s order and a state law meant to ensure expedited treatment.

That law requires the Department of Human Services to transfer inmates to a state-run facility within 48 hours of a civil commitment.

Swope remained in the Scott County Jail for 57 days.

“I was screaming to the top of my lungs telling everyone I could, ‘this is only going to get worse,'” Heath said.

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

“It’s frustrating because we want to serve people, we want to get people into treatments,” said KyleeAnn Stevens, Executive Medical Director for Behavioral Health at DHS. “We don’t want people waiting in jails to get treatment.”

But a 5 INVESTIGATES review of court records shows DHS has repeatedly violated Minnesota’s “48-hour law” in the last two years.

The violations recently led to sharp rebukes from sitting judges who ordered DHS officials to appear in court to explain why the state’s largest agency cannot follow the law.

“I’ve never seen a statute where there’s just overt failure to comply, 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 defended the agency’s efforts and blamed the violations on a shortage of mental health beds.

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

DHS attributes the shortage of mental health beds in its facilities to four main factors:

• Increasing court referrals through the civil commitment process
• Delays in moving stabilized patients out of state hospitals 
• Staffing shortages
• Lingering impacts of COVID-19 limiting capacity

DHS says it has made changes to improve capacity at Anoka Metro Regional Treatment Center (AMRTC) – a high-security mental hospital where most inmates are sent after a civil commitment.

In Swope’s case, DHS found a bed in one of its lower security Community Behavioral Health Hospitals (CBHH) after Swope was re-evaluated. 

But Swope wasn’t transferred until after his attorney filed a lawsuit against DHS.

“Why did they only take action after they were sued?” Wetherille said. “That decision could’ve been (made) months or weeks earlier, and I’m troubled as to why it wasn’t.” 

Judges call out DHS

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

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

Wilton first raised concerns nearly three months ago.

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

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

“We deal with human beings, not statistics, not numbers, not bed spaces. That’s not who Mr. Hegg-McLaughlin is. There has to be an answer for Mr. Hegg-McLaughlin and all other people that are sitting in our jails,” Wilton said during a court hearing.

Lawyers with the Minnesota Attorney General’s Office, who represent DHS, have repeatedly pushed back on the court’s authority to force the agency to take any additional action in the cases of inmates with civil commitments. 

That did not stop Scott County Judge Colleen King from calling out DHS again this month.

“There are countless other individuals who are languishing in jails because the issue has not been addressed,” King said at a hearing. “Wrongful incarceration is not the United States of America.”

Early warnings

Delays forcing inmates to spend additional days, weeks, or months in a cell instead of a hospital bed are putting a particular strain on jails such as the one in Scott County.

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

“There are a lot of people coming and going that you’re just getting their meds stabilized,” Hennen said. “So you’re always just putting out the fires.”

Hennen and others point to a 2016 report from the Office of the Legislative Auditor that warned about violations of Minnesota’s 48-hour law.

The report found the availability of “secure inpatient beds” was “inadequate” to meet demand even six years ago.

The same report added that “delays in placing individuals into treatment… may have increased county jails’ risks, potentially affecting the health or safety of the patient, fellow jail inmates, and jail staff.”

Hennen said the problem is not getting any better.

The number of people referred to DHS from jails rose from 111 in 2014 to 340 so far this year, according to an affidavit filed with the court.

“When the courts determine (a) person shouldn’t be in our custody anymore… we have to play this waiting game. It’s very challenging, frustrating.” Hennen said.

But not everyone believes that frustration should be aimed 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 is not going to like me saying that, but it had unintended consequences for people who needed care in the community.”

Abderholden says prioritizing mental health beds for jail inmates has come at the expense of others waiting for treatment who are not subject to the 48-hour law.

“I’m not going to fault DHS on this one, to be honest. They are struggling to be able to meet the needs of people in Minnesota who need that kind of care,” Abderholden said. “You can’t just wave your magic wand and have another bed … that’s just not how it works.”

Calls for transparency

For now, judges in Scott County 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 is now required to find a hospital bed for Ly or provide an explanation about why it cannot.

Ly has been waiting in jail for three weeks since being committed to treatment for schizoaffective disorder. 

His lawyer, Jim Conway, sued DHS and is now calling on the agency’s leaders to be more transparent about their process for getting help to those who need it.

“That would be a way of leading – explaining with transparency what’s going on and then try to propose some kind of real solution based on the resources that you do have,” Conway said. “But what actually happens is, ‘Judge, just commit this person, and it’ll be fine.'”

Cheryl Heath says she will continue to advocate for her son but acknowledges many others waiting for treatment do not have someone fighting for them on the outside.

“Someone’s job is to make sure these people are taken care of … It doesn’t matter how many facilities we have if there’s no voice for these people that are in the system,” Heath said. “It’s just one big cycle that until we shut the doors on that cycle, it’s not going to stop.”