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State agency blamed for ‘gross negligence’

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Richard Nelson was shot and killed by police in Waikiki a year ago while awaiting a court-ordered mental health evaluation to determine whether he was fit for trial for misdemeanor crimes.

Nelson’s evaluation had been delayed for months as a handful of state Department of Health forensic psychologists focused on whittling down a significant backlog that has grown substantially in recent years.

Police said Nelson, 52, was drunk at the time and failed to comply with commands to get out of a car that nearly struck the officer who shot him.

"The reason (Nelson) was killed is because he didn’t get a competency exam in time," said Daryl Matthews, a forensic psychiatrist who has done exams for the state as an independent contractor. He added that if defendants like Nelson received evaluations within at least a week, as required by law in other states, they would be treated right away and avoid misbehavior due to mental illness.

State psychologists contend these cases may become more prevalent as a result of staffing shortages and an overall breakdown in Hawaii’s mental health system.

The psychologists and clerical staff in the Health Department’s Courts and Corrections Branch have filed an internal complaint about shortages they say are resulting in serious consequences for mentally ill defendants and the community.

"It’s outrageous what’s going on. It’s horrible," said Matthews, who filed a separate complaint with the U.S. Department of Justice concerning civil rights violations of defendants awaiting evaluation.

"There are literally hundreds of these people over the course of months and years. What’s being done to them shows gross negligence on the part of the Department of Health," Matthews said.

Courts rely on the psychologists as expert witnesses and consider their opinions in decisions that can lead to jail, hospitalization, court-supervised release or freedom.

There are only three psychologists in the Health Department to evaluate as many as 300 cases per person a year. At least four positions are vacant. Two half-time workers quit since the beginning of this year, partially because of the heavy workload, according to the internal complaint sent by psychologists in April to Health Director Virginia Pressler.

The psychologists, who asked that their names not be disclosed, say the "excessive workload and accompanying stresses" are hindering them from adequately doing their jobs.

"Our work addresses numerous crimes, ranging from trespass up to murder, rape and arson. A rush to complete evaluations can result in errors in judgment," the complaint says. "Mistakes can lead to one unfairly losing his or her liberty, or can lead to dangerous individuals walking the streets."

The three full-time psychologists and the two half-time workers who left this year received 1,443 court orders for evaluations in 2014, compared with 692 evaluations for a staff of five in 2005, according to the complaint sent to Pressler.

The psychologists advise the courts on matters related to fitness to proceed with a case and the sanity and dangerousness of criminal defendants.

"It’s an essential component of government that is not getting attention," said Reneau Kennedy, a private-practice psychologist who was previously the Health Department’s forensic chief. "You’ve got competent professionals who are crying for help asking for more staffing and it’s not being addressed."

A separate issue compounding the problem is that the state is not adequately monitoring individuals who have been found not guilty by reason of insanity and are on "conditional release" in the community, Kennedy said.

She said there were nine Health Department psychologists, called forensic coordinators, to monitor around 500 individuals with mental illness in the community when she headed the program in 2003. Today, there are five forensic coordinators with four vacant positions; meanwhile, roughly the same number of individuals in the community have "some type of criminal justice involvement," Mark Fridovich, administrator of the department’s Adult Mental Health Division, said in an email to the Honolulu Star-Advertiser.

"Very high risk people have got to be monitored," Kennedy said. "The reason this issue ties into the courts and corrections problem is because any time one of the conditional release folks gets rearrested for new crimes, they have to be evaluated by the courts and corrections evaluators. If we could keep our monitoring system in place for those we know how to treat and keep them from being rearrested, there would be fewer returns to the criminal justice system."

The Health Department acknowledges that caseloads have been rapidly increasing, with the number of evaluations ordered by the courts rising 46 percent in five years.

"It’s a very serious situation but I don’t think it’s a public safety concern," said Fridovich, whose division oversees the psychologists. "There’s been a backlog. We’ve been monitoring the backlog and are very concerned about it."

Fridovich said part of the problem in filling the positions is that the salary is not sufficient for the expertise required or the complexity of the work, and is not comparable to market rates.

Civil-service court examiner positions pay between $5,410 and $6,330 a month, while salaries for exempt positions are between $5,410 and $6,935. The positions are posted on the Health Department and state Department of Human Resources Development websites. The minimum requirements for the job include a doctorate in clinical psychology and three years’ experience as a clinical psychologist; job seekers must also be licensed to practice in the state.

The Health Department has created a short-term plan that involves temporarily using psychologists from other branches within the department to help with court evaluations. The department also has an agreement with the state Judiciary to assign evaluations to independent community examiners and is seeking to fill at least four additional positions within the department. One position has been accepted and is in the hiring process, Health Department officials said.

Matthews’ complaint to the Justice Department focuses mainly on civil rights violations of defendants held in custody for too long while awaiting evaluation. He said defendants are being kept in jail for "grossly inappropriate, unconstitutional lengths of time," leading directly to their "egregious harm."

The complaint by Health Department psychologists noted one woman was kept in the Hawaii Community Correctional Center for four and a half months in 2014 awaiting an evaluation for a charge that should have only resulted in a 30-day sentence.

Matthews’ complaint seeks a federal investigation and competency exams to be done within seven days. State law doesn’t have a time frame for court-ordered exams to be completed and they often take as long as three to four months, he said.

"What they’re doing is taking mentally ill people who commit small crimes and putting them in a correctional environment where they’re criminalized," Matthews said. "From the point of view of danger, you’ve got individuals who have committed or are charged with committing some kind of criminal offense. They don’t have treatment … so they might do it again."

Cutbacks in the state’s community-based mental health services in recent years have exacerbated the problems and made the delays worse, said Louis Erteschik, executive director of the Hawaii Disability Rights Center, which did a study that found a 90-day delay in the average mental health evaluation as far back as 2001.

"It’s very disconcerting to see that this problem has not been solved," he said. "Because there are fewer services in the community you’ve got more guys getting arrested either because they ended up deteriorating out in community because of the lack of services … or sometimes families call police because there’s no other way to get any treatment for these people."

After significant cuts to the mental health programs, there was a huge spike in the number of people admitted to the state hospital and the number of people going to prison, Erteschik added.

"Where the community should be concerned is untreated mental illness in general," Erteschik said. "There’s a lot of untreated mental illness out there so you’ve got guys that are potentially prone to commit violent acts. These guys are dangerous so it should be seen … as a public safety issue."

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