How one judge tried to tackle waitlists at the state psychiatric hospital

This story is adapted from the MT Lowdown, a weekly newsletter digest containing original reporting and analysis published every Friday. It was originally published under the title “Hot Potato.”

At least one Montana judge has sought to creatively apply his legal authority to increase pressure on state officials to address “excessive, chronic wait lists” at the adult psychiatric hospital in Warm Springs. The results of the strategy have, at least so far, been mixed.

For months, dozens of mentally ill criminal defendants — “sixty-four human beings,” in the recent words of Cascade County District Court Judge John Parker — have been held in jails around the state, waiting for admission to the Montana State Hospital so a single on-staff psychiatrist can evaluate their fitness to stand trial. In the specific case before Parker, defendant William John Anderson had waited four months for that evaluation after being detained in March on charges related to assaulting a police officer.

Over that course of time, officials from the state health department and Montana State Hospital repeatedly appeared before Parker to explain that, in short, they’re working on addressing the backlog as quickly as possible. The judge was, apparently, unpersuaded. Even after Anderson’s October admission to the hospital, Parker ordered the state health department to produce a written report, “no more than twenty pages double-spaced,” explaining its real-time efforts to reduce the waitlist. He also ordered the department to submit the same report to two legislative committees and Gov. Greg Gianforte’s office. 

“The unrefuted testimony from the Department and the Department’s oral argument make it clear that the legislature’s intent in enacting the fitness to proceed statutes will remain thwarted without further action,” Parker wrote in a November order. “Even in a government of separated powers, the judicial branch has Constitutional and statutory authority to take certain actions, particularly in this situation where fundamental rights are at stake and the proper operation of critical statutes is being continually disrupted by previously-identified administrative problems.”

The state health department appealed the ruling to the Montana Supreme Court, which, on Tuesday, overruled Parker’s order in a 5-0 decision. The justices wrote that, because the state health department is not technically a party to Anderson’s lawsuit, “​​the court has no authority to act upon the substance of any report produced by [the department]” or force the state to take “corrective action.”

But, because the state health department didn’t receive word from the Supreme Court about its appeal before Parker’s deadline, its leadership ultimately decided to produce the report as directed. 

In the Nov. 17 report, department director Charlie Brereton described the hospital’s waitlist issues as “​convoluted and longstanding, ultimately rooted in the neglect of proper resource allocation by past legislatures and gross mismanagement by prior administrations.” In the short term, Brereton wrote, the department is pursuing a contract with Washington University in St. Louis and the University of California, San Francisco, to “retain forensic psychiatrists.” He said it has also decided to boost its hourly rate for contracted providers and is working to recruit additional forensic psychiatrists as state employees. 

Brereton also noted that longer-term efforts to fix the struggling evaluation system are underway. Among them, the Behavioral Health System for Future Generations Commission, of which Brereton is vice chair, has recommended up to $7.5 million be given to counties for a one-year pilot program to pay for court-ordered evaluations at the community level. That funding has not yet been approved by the governor.

Judge Parker on Friday declined to comment on the broader issue of the hospital’s waitlist, citing numerous pending cases before him that deal with that topic. In his November ruling, however, the judge made clear that the ordered report was partly intended to kickstart conversation among state officials and lawmakers “who may not fully appreciate the magnitude of the crisis.”

“The criminal defendants have a Constitutional right to [a] speedy trial. The State has a duty to protect citizens from crime and properly does not want criminal prosecutions dismissed,” Parker wrote. “For the incarcerated person awaiting transport, there is nothing abstract about it.”