Severe Mental Illness: Do You Have a Legal Right to Psychosis?

WebMD Center Schiz

By Paul Frysh

January 31, 2023

Isaac Creed was waiting on a street corner in Idaho Falls for basketball great Michael Jordan to arrive and pick him up — at least that's what he told the sheriff that arrived instead.

Creed, 28, a former straight-A high school student and tennis star, seemed highly agitated and appeared to be mumbling to himself. His clothes were filthy, his nails long and jagged, and his hair full of dirt and grass. His body odor was noticeable from several feet away.

This moment was the culmination of 10 years of struggle in which Isaac's parents became increasingly frustrated at the lack of interest — from health care authorities, the courts, and even the police — in helping their son get the care he so clearly needed.

What the sheriff did next would change the lives of Isaac and his family.

A 'Constitutional Right to Be Crazy'

Creed was in the midst of psychosis — a disconnect from reality with hallucinations, delusions, voices, or thoughts that are not confirmed by the outside world or other reasonable people.

Like almost 9 million other people in the U.S., Isaac Creed has a type of severe and persistent mental illness with psychosis, called severe mental illness (SMI), or sometimes "serious mental illness," that encompasses schizophrenia, schizoaffective disorder and certain types of bipolar I. (Some experts refer to this group of illnesses as "psychosis spectrum disorders.")

People with SMI make up about 3.4% of the general population, but an astonishing 30% of the homeless population — that's about 170,000 people with SMI living in the streets on any given day. And between 2017 and 2020, the streets were exactly where you could find Isaac Creed.


It wasn't always like this. After graduating from high school with honors, Isaac went off to the College of Idaho on a full academic/athletic scholarship where he majored in political economy and played on the tennis team. He loved college, but near the end of his freshman year, he started to hear voices and experience other symptoms of severe mental illness. He eventually dropped out of college and moved back home.

In the years that followed, Isaac's parents were sometimes afraid of him at home. But they were more afraid of what might happen to him when he was on his own. They knew he was easily led (a common symptom of SMI) and worried people would take advantage of him. They worried what he might do in a psychotic state. They worried he would hop on a bus or train to nowhere and they'd never find him again.

And so they spent many nights roaming the back alleys of Idaho Falls, flashlight in hand, looking for their son, often not knowing where he was for days at a time.

They repeatedly begged the local police to help find Isaac and get him committed to a mental institution. But, said the police, there was nothing much they could do unless he was an "imminent danger" to himself or others or was "gravely disabled."

Hearing voices that weren't there didn't count. Delusions and hallucinations didn't count. Even threats of violence didn't count unless there was clear evidence that violence was imminent. At least that's what the police said.

They informed Isaac's parents on several occasions that Isaac had "a constitutional right to be crazy."

But does he?

'Choosing' Not To Treat SMI

"Not really," says Elyn R. Saks, a USC distinguished professor of law, psychology, psychiatry, and behavioral sciences, and 2009 MacArthur fellow.

Imagine your grandmother with profound dementia starts running barefoot through the streets of New York City without a clear idea of where she is or what she's doing.  

Would she have a constitutional right to be left alone in the streets with her illness?

"No," Saks says. Though she may not be an "imminent threat to herself or others," she would almost certainly be considered "gravely disabled." (Most states have some version of this standard.)

"The state could and likely would deem her incompetent and supply her with some level of appropriate care. In fact, they would have an obligation to do so."

So how does that differ from a person walking the streets with an untreated psychotic illness?

"It doesn't," she says.

WebMD Schizophrenia Chart

Saks, who has schizophrenia, is well-acquainted with the rougher edges of the system that processes the mentally ill in the United States.

She has devoted a large portion of her legal career to advocating against inappropriate use of restraints, which were used to hold her down for 20 hours at a time during one of her first psychotic episodes many years ago. Involuntary commitments like these caused deep psychological scars that have stuck with her for decades, Saks says. 

She also believes they saved her life. 

To this day, when she sees a person living in the streets with clear signs of untreated psychosis, she thinks: That could so easily have been me.

So when New York City Mayor Eric Adams announced a new initiative that authorizes police officers, with the help of mental health professionals, to take someone for a mental health assessment if the person "appears to have a mental illness and cannot support their basic human needs," her response was: "Great!" The initiative fell clearly within the "gravely disabled" standard that so many states use as well as within the conscripts of New York state law. "Plus," Saks thought, "it would help people like me with severe mental illness."

Yet hundreds of civil rights groups and homeless and mental health advocates have protested the initiative. Critics say it tramples on the civil rights of people with mental illness.

Rather than hauling in people who are homeless for assessment or treatment, says Lewis Bossing, senior attorney at the Bazelon Center for Mental Health Law, "we need to do a far better job of outreach so that we're actually engaging people and helping them figure out what might be of value to them."

Real care for those with SMI, says Bossing, involves services that "wrap around" the individual. They do need assessments, but also need street outreach teams, peer mentoring, family engagement, counseling, specialized housing, medication, and careful monitoring. And there's no doubt that the most successful treatment programs use some combination of these "wraparound" services.

"That's certainly true," says Saks, who is also on the board of the Bazelon Center. "And I wholly support their ambition and desire to put these programs in place." But by themselves, she says, these programs simply aren't enough to reach the immense number of people in need.


Elyn R. Saks is a USC professor of law, psychiatry, and psychology.

In the meantime, says Saks, thousands of people walk the streets without so much as a diagnosis, much less the treatment they need. Without it, they're more likely to remain homeless, harm themselves, be victims of violence, and use illicit drugs.

They're also more likely to get arrested. "The biggest mental health facility in the country is the L.A. County Jail," Saks says. In fact, throughout the U.S., people with SMI are far more likely to be in prison than in a mental institution. And this is a population, she says, disproportionately made up of marginalized minority groups, especially Black men.

"That's a national travesty and a tragedy."

Police can certainly use more training about SMI, Saks says, but the mayor's initiative actually gives the police a tool to deal with SMI now, before they have to deal with a psychotic crisis that could end in violence or criminal charges.

The real crux of the matter for both supporters and detractors of the mayor's plan is this: Many people with untreated SMI simply don't respond to any appeal for voluntary treatment. They may not believe they are sick, or their illness may cause intense paranoia or other symptoms that make it impossible for them to willingly engage with legal or medical authorities or even follow the guidance of family members.

And this raises a tricky legal question: Barring a crime or imminent danger, when is a person's mental illness severe enough to trigger intervention by medical authorities, family members, or the state?

Treating Someone Who Doesn't Know They're Sick

Bossing, for one, is wary of drawing the line too quickly.

"We jump to an assumption that people don't know what they need. And I think that's often a matter of not being willing ... to engage people in thinking about what might help them and what it is that they want," he says.

Former Minnesota state Rep. Mindy Greiling, who has a son with SMI and spent many of her 20 years in the state House of Representatives working on mental health issues, disagrees. She wrote a book about her family's journey with SMI called Fix What You Can and co-hosts a podcast about SMI titled Schizophrenia: Three Moms in the Trenches.

Mindy Greiling

Mindy Greiling, right, with her son Jim.

"The problem," says Greiling, "is that a person with untreated SMI, particularly in the midst of a psychotic episode, has no idea what they really need or want."

For example, when her son Jim first became psychotic, he repeatedly stated his conviction that she was "the Antichrist" and that his earnest need (never acted on) was to "shoot her in the face." But later, he did act on a "need" to jump off a three-story building and broke his back. He also acted on a "need" to ram his car at full-speed into another vehicle. Luckily, no one was seriously hurt (though he totaled his car).

"Is this a person competent to make decisions about his treatment?" Greiling asks.

To anyone who knew the formerly introverted young man who loved hiking, reading, and hanging out with close friends, it was clear that Jim had become very ill.

But Jim resisted treatment for years because he didn't believe he was ill. Like many with SMI, he lacked the capacity to know he was sick. This condition, which doctors call "lack of insight" or anosognosia is one of the main reasons why people with SMI refuse treatment. It is well-established in other neurological conditions such as stroke, Parkinson's, and Alzheimer's disease.

It's the reason police, doctors, and loved ones wouldn't be barred from treating your grandmother with dementia who was running in the streets, or keeping her safe against her will.

Contrast that with Jim. Even as his illness caused multiple run-ins with the law, even after clear and copious documentation from mental health professionals, even after he tried to ingest his own feces and urine in a hospital psych ward, Greiling could not get legal guardianship over Jim, much less the authority to guide or compel his treatment.

The reason given by authorities, says Greiling: "He's not sick enough." 

Today, through proper treatment, Jim hasn't had a major psychotic break in years. He has a part-time job and has rekindled a love for hiking and camping. Ironically, the medications he thought he didn't need gave him enough insight into his illness to convince him that he needed them after all.

Why the Different Standard?

The statutes that govern the care of those with SMI vary somewhat by state, as do the tools you can use to compel care — inpatient treatment, civil commitment, assisted outpatient treatment, guardianship, and others.

The real problem isn't the nature of the laws or the differences between them, but rather their lack of implementation, says Lisa Dailey, executive director of the Treatment Advocacy Center.

The reasons for this, she says, start with the culture at large.

There is a bias in how the average person, and even the legal and medical establishment, deals with psychosis, Dailey says. 

"We somehow attribute more agency to a younger person in psychosis — as if they are making a choice to harm themselves by ignoring their illness and skipping treatment, while the older person with dementia is not," Dailey says. "To me, that's victim-blaming." 

And there are systemic problems as well.

"There are perverse incentives for hospitals not to admit people with SMI because they don't have the beds to care for them anyway." 

So, Dailey says, the ER fills up with psychotic patients that aren't getting the care they need and have nowhere else to go. It's stressful on the ER doctors and the medical staff, and it doesn't do much to help the patients either.


Police don't want to take people with SMI to the ER if the hospital just releases them right back into the streets where they were in crisis in the first place.

Still, Dailey says, there are numerous successful models across the country where local government, nonprofit agencies, police departments, and others have taken the initiative, often in cooperation with different public and private stakeholders, to provide the kind of "wraparound" treatment that research shows is quite successful.

We can only hope, Dailey says, that more people in government and the medical establishment sit up and take notice.

Isaac and Michael Jordan

When the local sheriff met Isaac on the corner where he had been waiting for Michael Jordan, Isaac's condition had been going downhill for weeks.

CIA agents were on their way to kill him, Isaac repeatedly told his father. He saw them in every helicopter and plane that flew overhead. He threatened to choke his mother and burn his sister's hair. One night he went out with a flashlight, shining it into his neighbors' windows. He wanted them to admit they were French spies.

But when the sheriff arrived, he didn't tase Isaac, or take him down with the SWAT team, or even arrest him, as the local police had done in the past. He delivered him to a local psych ward for an assessment because, at least in the sheriff's view, Isaac was "gravely disabled."

Isaac Creed walks

Isaac Creed, left, with his parents Cheryl and Robert.

Isaac was too deep into psychosis to go willingly, his parents say. It took two or three officers to get him into the car, and yes, they had to use some force. The assessment led to a 5-week commitment at a mental health facility.

Isaac's parents were overwhelmed with relief and appreciation. And, they say, it marked a turning point in Isaac's treatment. 

Today, at age 31, Isaac lives at home with his parents and, with the benefit of careful and competent treatment, has not had another psychotic break. He loves to travel with the family and take the family dogs for long walks. He took an upper-level physics class at the local college last semester and made an A. 

The situation isn't perfect. There's nothing to stop Isaac from refusing medication, hopping on the next train out of town, and wandering the streets of some far-off city with untreated psychosis. 

Hopefully, if that happened, his parents would be able to track him down and bring him home. 

But what if they couldn't? And what happens to Isaac when they pass away? 

That, says Lisa Dailey, is where government institutions, medical authorities, and even the police have a legal and moral responsibility to step in. But they have to do it before a crisis emerges — just as they do, however imperfectly, for other vulnerable populations like children, the elderly, and the physically infirm. 

"People with severe mental illness," Dailey says, "are every bit as deserving of that care."

Click here to learn more about where to get help during a mental health crisis. Go to the emergency room or dial the National Suicide and Crisis Lifeline at 988 if you have thoughts of harming yourself.

AOT: A Model For Positive Outcomes

One approach where the courts and legislature have empowered mental health authorities to compel care in people with SMI is assisted outpatient treatment, or AOT, sometimes called "outpatient commitment." In addition to medication, these programs typically offer the kind of wrap-around treatment — peer outreach, counseling, housing assistance — that studies show is most effective. The results have been very promising (see infographic).

And yet so far, these programs are few and far between. Part of the problem is that the laws for starting involuntary treatment differ from state to state. But the larger problem is a lack of initiative among government and medical authorities to use these laws to help people with SMI, says Lisa Dailey, executive director of the Treatment Advocacy Center.

"While almost all states have statutory authority for assisted outpatient treatment to help keep people engaged with treatment," Dailey says, "the actual number of programs implementing these laws is woefully inadequate."

"As with inpatient treatment or emergency evaluation, these laws create tools — but it's up to our mental health system to use them."