V. Conditions of Confinement: Mental Health

Mental health problems are widespread among children in the juvenile justice system.[422] In New York in 2004, of the children screened by OCFS for special needs when taken into custody, 52 percent were identified as having mental health needs.[423] This official figure is not disaggregated by gender. Some research, and the experience of practitioners, suggests that incarcerated girls generally have more mental health needs than boys,[424] and are also more likely than boys to be diagnosed with more than one mental health problem, often a mental health disorder together with a substance abuse disorder.[425]According to a knowledgeable source:

The girls are different than the boys. A boys' facility will have about 85% delinquents and 15% mental health kids. At a girls' facility, it will be the reverse. The reason is that the girls get adjudicated at a much higher rate for crimes like prostitution where they're actually victims. So you're going to have a higher percentage of mental health kids in the girls' system.[426]

Moreover, research outside New York suggests that a significant proportion of incarcerated adolescents suffer from post traumatic stress disorder (PTSD), and that girls are more likely than boys to develop PTSD when exposed to trauma.[427] Whether or not they suffer from PTSD, a high proportion of incarcerated girls have experienced past trauma and abuse, which contribute to mental health problems.

Seventy-seven percent of children admitted to OCFS custody in 2004 and screened by the agency were found to have substance abuse problems.[428] Substance abuse needs to be addressed as part of an effective treatment regimen, and as experts point out, must also be recognized in many cases as an effort by children to self-medicate for untreated mental illness.[429]As a knowledgeable source put it:

There aren't a whole lot of drug dealers in the girls' facilities. My opinion is that most girls who abuse drugs are self-medicating. That means you have to address the psychological underpinnings. The facilities have some substance abuse groups and they certainly could have more. But they need the mental health services, too. It shouldn't be an "either-or."[430]

As described earlier in this section and in Girls' Delinquency: Systemic Failures and Pathways to Incarceration, above, children entering the juvenile justice system, and many girls in particular, have serious mental health needs. As one source put it:

Twenty years ago OCFS was taking turnstile jumpers and car thieves, now they're getting kids getting kicked out of residential treatment centers because they're too violent and suicidal. But OCFS is still treated as a detention program.[431]

Lansing and Tryon face the difficult challenge of trying to help highly troubled girls acquire the skills and self-knowledge they need to be able to cope, and of accomplishing this with limited budgetary resources and consequent limitations in staff. Whether because of resource constraints, policy, or institutional culture, HRW/ACLU are concerned that the facilities may fail to give sufficient priority to the girls' needs for mental health interventions by professional mental health staff, including individual therapy and medication, as well as for a full range of psycho-social and therapeutic programs to provide girls with improved life skills. We are also concerned that the culture in the facilities may be too wedded to a punitive orientation. We were told by one source, for example:

Kids are looked at by this agency as either compliant or defiant. They look at kids as being one-dimensional. Really, anybody is a range of things. Mental health people talk about dynamics, and know that if you understand the dynamics, you can address the behavior. OCFS sees that as making excuses for the kid, and says knock off the bad behavior or you're going to get punishment.[432]

All OCFS facilities provide some form of mental health and substance abuse programming. At the Lansing and Tryon facilities, mental health services are provided by a combination of OCFS staff, staff of the state Office of Mental Health (OMH), and independent contractors. Pursuant to a memorandum of understanding between OCFS and OMH, "mobile mental health teams" of OMH staff work daily in certain OCFS facilities, including Lansing and Tryon.[433] Mental health services include psychiatric services, as well as psychological counseling provided by psychologists and social workers.

Official records for Lansing state that one psychiatrist visits the facility three days per month, and another visits Lansing's mental health unit at about the same frequency.[434] Tryon appears to have a similar system, but official records provided to HRW/ACLU by OCFS contained less information regarding the frequency of psychiatrists' visit to the facility.[435] Psychiatrists' duties are described in agency documents as providing "treatment" to children needing psychiatric services.[436] Agency records state that psychiatrists are available to children for "consult by phone," and that Lansing has "telepsychiatry equipment" connecting the psychiatrists from various facilities to each other.[437] According to an informed source, in practice, the psychiatrists' role is almost entirely limited to prescribing and administering psychotropic medication and periodically monitoring the progress of medicated children.[438]

OCFS describes psychologists' duties as diagnosing and treating residents with signs of "mental illness, poor adjustment, and/or emotional/learning problems," as well as consulting with staff, referring girls to the mental health unit, assisting in release planning and outpatient referrals, and administration.[439] According to an informed source, in practice, psychologists conduct diagnostic tests, refer children to other facilities, and determine special educational needs, among other things.[440] Psychologists also provide therapy to children. Therapy involves working with children to understand what mental dynamics are occurring, patient education to help children understand their own condition, and symptom management, for example, if a child expresses a wish to harm herself.[441] Social workers also provide therapy, but cannot conduct testing.[442]

OCFS administrators express pride in their achievements in providing mental health care to incarcerated girls. They point, for example, to the designated mental health units at each of the Lansing and Tryon facilities as evidence of their efforts.[443] Each of the two facilities has a unit to house children identified as having the most severe mental health needs, called the "mental health unit."[444] These mental health units are small, holding about 12 children rather than the 20-25 held in the "generic," or non-mental health units.[445] An OMH "mobile mental health team" is assigned to each mental health unit and provides intensive mental health treatment services on a daily basis.[446] According to OCFS documents, Lansing's mental health unit employs one psychologist, two psychiatric social workers, and a "treatment team leader."[447] Tryon's mental health unit is staffed by a psychologist and two social workers.[448] The establishment of the dedicated mental health units was unquestionably a step forward, especially since professional OMH psychiatrists, psychologists and social workers are now placed in the units to give care to the children housed there. [449] Nevertheless, the size of such specialized units is a concern. Grievance logs contain complaints by girls of not being allowed into such units despite believing that they require specialized care.[450]

OCFS documents provided to HRW/ACLU provide much less detail about substance abuse treatment than they do about mental health treatment. They indicate that, at Lansing, group sessions are held once per week by an outside contractor for girls "with the most severe abuse problems."[451] A staff schedule for Tryon indicates that a drug abuse counselor is available four full days per week.[452] Some interviewed girls told HRW/ACLU that they did not have substance abuse problems and therefore did not receive treatment. Others described group meetings in which addiction and other issues were discussed. For example, Bless L., who was 14 when she was incarcerated in the Lansing facility, said:

I was in S-unit, that's for substance abuse. Once a week, a lady named [ ] would come in to talk with us. On Friday, there was a little group on the unit. They showed the "Beat the Streets" video, which is about how to get away from people who use. . . . It didn't help. I knew most of the stuff the lady was telling me already and I didn't really care. If they want to help us, they should get closer to residents, to understand where we're coming from.[453]

Screening and assessment are important first steps in the provision of mental health care. HRW/ACLU have been told by informed sources that girls entering TryonReceptionCenter are screened by a mental health worker who administers psychometric "scales" for depression, IQ, and other values. These scores are combined with information about the girls' history, including for example, past mental illness and substance abuse, and the girl is assigned a score between one and four. A high score alerts the facility to which the girl is ultimately assigned that she requires a more detailed assessment.[454] The usefulness of this preliminary assessment is undermined by the absence of specific facilities that could provide treatment tailored to girls' specific mental health problems and needs. A knowledgeable source describes this problem as follows:

OCFS works like [adult] corrections, they classify the kids. The assessment is more relevant to the boys, because you have several facilities to choose from, for example, based on whether the boy is a regents student or has mental retardation. With the girls, they're assigned to a facility by security and there aren't many facilities, so there's not a whole lot of choice. So it's sort of a perfunctory process that's done.[455]

Once girls arrive at Lansing or Tryon, a more in-depth assessment may be performed. OCFS's facility operational guidelines for TryonGirlsCenter require that children placed there "receive a brief mental health screening by medical staff at admission via the Admission Screening Interview."[456] If significant problems such as "bizarre thought" or "suicidal intent" are observed during the screening, the facility administrator is to be notified "for further action."[457] If a girl receives a high "mental health screen score," a "mental health assessment" is performed.[458]

Whatever the screening and testing indicate, the mental health services at Lansing and Tryon remain limited because of a shortage of qualified staff.[459] The need for professional mental health services exceeds the beds in the mental health units. The extent of the need is indicated by the fact that over the last two years, an average of 53 percent of girls held at Lansing, and 64 percent of those held at Tryon were administered psychiatric medication.[460] Yet at Lansing, the approximately seventy girls who are not in the mental health unit receive psychological services from only one psychiatrist,one full-time psychologist, and two part-time social workers.[461] At Tryon, one psychiatrist, three psychologists and a single psychiatric social worker staff the non-mental health units.[462] OCFS administrators themselves acknowledge that more care is needed, citing budgetaryconstraints as the cause of deficiencies.[463] As explained to HRW/ACLU:

To assign two or three mental health people for all of the kids that aren't on the mental health unit, that's a band-aid approach. . . . Those therapists can meet with the kids maybe once or twice a month. And then they have to do the discharge planning for every kid. So OCFS really needs to provide more mental health staff.[464]

Another interviewee agreed, stating, "There aren't enough mental health providers, it's limited for the number of children."[465] At least some girls have also complained about not having access to mental health care when they feel they need it. In Lansing, over the course of one year, over twenty grievances were filed by girls saying such things as "has not been counseled, told someone would be available to talk to her,"[466] and "really needs to talk."[467] Other complaints state: "put in 2 sheets to contact social worker, no response,"[468] and "she feels she is about to blow/go crazy. Needs to talk to someone about her issues."[469] One grievance reads: "not on meds, needs to talk to someone about issues going on in her head."[470] According to Devon A., who is now 17 years old, access to mental health professionals is limited:

They're really picky about letting you get help from a psychologist. You have to go through [a supervisor], over staff, she'll set up an appointment with you. Usually it's okay, it's kind of helpful if you have the right person.[471]

Much of the "counseling" children receive at Tryon and Lansing is not provided by mental health professionals but by line staff who supervise the children day to dayas well as lead various group sessions addressing life skills, anger management, and victim awareness. [472] The counseling provided by line staff is a part of what OCFS calls its "behavior modification program," an effort to help change children's behavior through positive and negative reinforcement taking the form of rewards and punishments.[473] Professionally trained mental health staff also lead group sessions as well as provide individual therapy. We do not have data from OCFS regarding how many girls receive individual therapy, how long the sessions are, and the length of time girls remain in therapy. Based on the limited information we have, however, we are concerned that the girls mental health needs are shortchanged because of inadequate staffing.

Some girls find such programs helpful. For example, according to an OCFS administrator, girls in OCFS facilities are offered a program called "Adelante."[474]Adelante was developed at Lansing by facilities staff and addresses trauma from sexual abuse.[475] Devon A., who had been raped prior to her incarceration, did not describe participating in the Adelante program, but said she spoke with a "rape coordinator" at Tryon about having been raped, and that the conversations helped her to "become a survivor rather than a victim."[476] Yet, like the counseling performed by unit staff, these sessions do not constitute professional mental health interventions or therapy but are intended instead to offer support to the girls and to help them learn to modify concrete behaviors such as the expression of anger.[477] An expert explained:

They have groups where they teach certain topics like anger control and social skills, and the YDC[478] does, runs the groups. She counsels them, and they tell these people a lot of personal stuff, so these people who have no mental health training often find themselves being mental health service providers.. . . You can see what the job description is for a YDC, and it is not to provide mental health treatment. And some do seek out mental health providers when a child is having a particular difficulty, and they recognize they're not able to provide the service.[479]

Not surprisingly, line staff vary in their commitment to and ability to provide effective group sessions and individual support to the girls. Many direct service staff are inadequately prepared to help girls with their mental health needs. By incarcerating girls in facilities far from the girls' communities and families, the state effectively supplants the girls' individual social networks with facilities staff.[480] It is therefore unsurprising that the relationship between girls and the line staff who supervise them daily in their living quarters is a major determinant of how girls view their experience of incarceration. This close interaction, in combination with the relatively infrequent contact girls have with an overextended mental health staff, mean that the work of mental health professionals can be significantly enhanced or undermined by line staff.

The importance of a highly qualified staff in promoting rehabilitation and providing positive role models is reflected in detailed international guidelines regarding staff selection, qualifications, remuneration, and training.[481] Juvenile justice services, moreover, are to be conducted, "with a view to improving and sustaining the competence of personnel involved in the services, including their methods, approaches and attitudes."[482] Experts in juvenile development concur that to offer girls the possibility of changing self-destructive behavior, the facilities staff with whom girls interact day to day must be exceptionally skilled, nurturing, respectful, and non-judgmental.[483]

Yet nationwide, facilities staff often lack both the high level qualifications and the nurturing attitude necessary to promote troubled children's development and mental health. New York may be no exception. Informed sources have stated to HRW/ACLU that direct care staff in OCFS facilities frequently lack sufficient knowledge of mental health issues to handle the complex demands posed by girls with mental health problems, and, depending on the facility, are insufficiently supervised.[484] As a service provider in a non-secure girls' OCFS facility put it:

It's a punitive culture, not nurturing or therapeutic. Staff positions are not well paid, and you don't need any degree or much advanced education at all to hold them. The people who hold them, some staff are amazing, humane people. Most are grumpy, unhappy, overworked, underpaid adults who take it out on the girls. There's no motivation for empathy. They set the girls up, they pick favorites, they mock the girls, they set up cliques, they set up one girl against the others.[485]

That staff members, while generally well intentioned, are in many instances unqualified and insufficiently trained to maintain the difficult balance between compassion and professionalism necessary to work with girls with mental health problems is reflected in girls' reports of their interactions with staff. While some girls said that certain staff members listened to them and provided helpful advice about problems in the girls' lives, many girls complained of disrespectful or unfair treatment and of being singled out by certain staff.

OCFS grievance records are replete with allegations of staff venting aggression on girls, neglecting their job duties, targeting certain girls, and favoring others.[486] According to girls' complaints, targeting takes the form of addressing them rudely, limiting girls' access to the bathroom, holding a grudge against girls for a past conflict, allowing girls to fight with each other, and even playing tricks on targeted girls.[487] Some girls felt that staff took their anger out on the girls. For example, girls at Tryon reported that playing kickball during physical education isn't fun because the staff members play and hit the girls hard with the ball.[488] In their grievances, girls frequently describe staff as "rude," "nasty," and having an "attitude." Additionally, girls sometimes felt neglected by staff.

Conversely, girls also complained that staff were sometimes too familiar with them, or showed favoritism toward some girls. According to the girls' complaints, this favoritism takes the form of allowing some girls to physically touch staff in contravention of the rules, the giving of extra food, or allowing extra time for phone calls or showers. Devon A. complained that facilities staff "personalized" with girls. When asked what she meant, she replied:

Fall in love with the kids they're working with. Be soft on certain people but not others. It's not falling in love but starting to really care. I had a couple of staff that really cared about me and it got to the point where they'd give you candy or bring food from home for you. That gives the kid authority. It can get really serious to the point where they get a memo or get suspended. If they get a memo or suspended they come into the unit really pissed off, they don't leave their attitude at the door. They say, "I'm not in the f-ing mood," and they say we're "too needy." If they think you're too needy, they don't like you any more. It's permanent.[489]

Devon A.'saccount is corroborated by facilities grievance logs in which girls complain that staff members at the Lansing and Tryon facilities tell girls that they are "attention seeking," "too emotional, cries too much," a "cry baby," or "acting like a baby."[490] In fact, such attention seeking behavior may arise from a history of victimization.[491]

Girls complain that their direct care staff mentors or counselors ignore them, put words in their mouths, or avoid speaking to them for weeks at a time.[492] One girl at Tryon complained that she was told by her counselor that the counselor "washes her hands of her."[493] A possible remedy to this is increased staff training on mental health issues.[494]

In addition to depriving girls with mental health problems of the nurturance they need daily, insufficient knowledge among line staff of girls' mental health concerns can have additional consequences. As described in Violations of Privacy, above, poorly trained and supervised line staff may inadvertently or purposefully disseminate intensely personal information concerning girls' health and histories.[495] Staff may also interfere with treatment, for example, by failing to dispense psychotropic medications at the appropriate times,[496] or by disregarding recommendations made by mental health professionals.[497]

Staff insufficiently trained in mental health provision may also complicate the provision of mental health services upon a girl's release. According to facilities policies, psychological and regular staff are to "coordinate their efforts with the after care worker in securing appropriate services in the community" when children are released from the facility.[498] The development and execution of an aftercare plan for mental health care is crucial because after a stay often lasting for a period of months, psychological treatment is usually incomplete and must be continued. Yet HRW/ACLU was told that the coordination can be problematic, with the regular OCFS staff counselor making recommendations at odds with those of mental health providers, and with lax implementation by some OCFS aftercare workers.[499] In some cases, administrative confusion prevents Medicaid benefits from being reactivated for girls leaving facilities, blocking girls from obtaining prescribed psychiatric medication.[500]

Punishment for self-harm is also a concern. Confinement in a prison-like environment can aggravate mental health problems and increase the likelihood of self-mutilation and even suicide for some people.[501] When HRW/ACLU requested data from OCFS regarding the frequency of suicide attempts and self-harm among incarcerated girls, OCFS initially denied the request, and later stated in response to an administrative appeal that it "does not maintain cumulative statistical data regarding . . . suicide or self-harm."[502] HRW/ACLU are perplexed by OCFS's failure to maintain such statistics.There is no question that girls in these facilities have engaged in suicide attempts and self-mutilation. [503] The monthly reports for Lansing and Tryon reveal numerous instances. [504] For example, a Tryon monthly report stated:

There was an incident whereby during a room check, a staff noticed that a youth had a pillowcase over her head. After removing the pillowcase it was subsequently discovered that this youth had a shoelace tied around her neck. The shoelace was cut off and the youth was placed on suicide watch.[505]

An earlier report gives a similar account:

There was an incident where a youth went into the school bathroom, tied a shoelace around her neck and to the doorknob. When the door was opened by staff, it was necessary to cut this shoelace off of her neck. This same youth swallowed a staple apparently one week later.[506]

As for self-harm, when asked whether she had cut herself while at Tryon, Felicia H. stated:

Yeah, because it stressed me out. There's a lot of them that do that. I used a staple, you can do it in your room and they don't know what you're doing.[507]

When Alicia K. was asked whether she had ever witnessed it at Tryon she replied:

You see that a lot. They'd use an eraser to put their name on their arm. You go over it with an eraser until it burns. Then you leave it over night. Then you peel the scab so it scars. Other people use paper clips or staples. They'd write their name or their tag[508] or whatever.[509]

Children can harm themselves for psychiatric reasons or to gain attention or both.[510] Within as without institutional settings, self-cutting is more prevalent among adolescent girls than other groups, and is usually diagnosed as a symptom of an anxiety disorder or borderline character disorder, and in some cases may be traced to psychiatric medications such as Prozac or certain other antidepressants. [511] As explained by Terry Kupers, M.D., M.S.P.:

Some say they do it to see the blood and know they are alive, some to feel the pain, but in most there's a resolution of a certain amount of anxiety after they cut or self-harm. They are suffering emotional pain, and definitely need psychiatric attention.[512]

Staff must respond when they see a child trying to injure themselves, but the nature of the response should be calibrated to the situation.

If a kid's got a staple, sometimes it's "look what I got, look what I'm doing," but staff get involved in a power struggle in trying to get the staple away. A kid can't kill herself with a staple or a broken button, but kids have gotten restrained for having them.[513]

Girls in OCFS custody who attempt suicide or are otherwise believed to be a suicide risk are put on suicide watch, where they are constantly watched by staff and monitored by a psychologist.[514] Girls may also receive more counseling than usual.[515]

Girls who have engaged in lesser forms of self-harm, such as scarring themselves, may be put on "personal safety watch," in which staff must check up on the girl every 15 minutes. But in at least some cases, self-harm receives punishment as well as treatment. For example, a grievance report from Tryon, reads:

[Name redacted] is grieving because she received a Level 3 for self-mutilation - there were no witnesses to this and also resident states she carved herself 2 weeks ago. States counselor said if staff did not witness this, then she shouldn't have received a Level III.[516]

That girls are punished for mutilating themselves is also confirmed by Alicia K's experience:

If you got caught in the act, you got restrained. If they caught you later it was self-mutilation, a level three. It's written up like a referral in school, an automatic extra thirty days and disciplinary action. No extra counseling though. Everyone had to see the counselor once a month.[517]

International standards prescribe complete mental health assessments of incarcerated children as soon as possible after they are admitted to a facility, and provide details as to the kinds of reports and individualized treatment plans that should be generated for each child.[518] Children found to be suffering from mental illness should "be treated in a specialized institution under independent medical management."[519]New York case law recognizes a right under the United States Constitution to adequate rehabilitative treatment for all incarcerated children.[520] In addition, under international norms, juvenile facilities should offer treatment for drug abuse administered by qualified personnel and tailored to the age, sex, and other characteristics of the children served.[521] Delinquency court judges, moreover, place girls in facilities with the expectation that they will receive particular mental health care services, and often enter an explicit order to that effect.[522]

By incarcerating mentally ill children in prison-like facilities such as Lansing and Tryon, New York State is failing to meet the international standard requiring mentally ill children to be treated in specialized medical institutions. In addition, in those instances in which New York fails to provide adequate mental health care for children with mental health problems, the state is violating its duty under U.S. constitutional law to provide adequate rehabilitative services to all children.

General Health Concerns

Under international guidelines, every incarcerated child is entitled to receive adequate medical care. [523] The provision of care is especially important for a population of children who often lack adequate health care prior to their incarceration, a situation provoking complaints from public health experts that because aspects of the larger health care and welfare systems do not function effectively, the juvenile justice system has become a major provider of health care to indigent children. [524]

Although not all children admitted to OCFS custody are screened for health, mental health, substance abuse, and other needs, [525] girls do receive a health screening when they enter TryonReceptionCenter. [526] The girls that HRW/ACLU spoke to did not know or did not remember specifically what they had been tested for besides sexually transmitted infections, and did not appear to have received detailed information or counseling regarding the outcome of the screening. [527]

Most girls expressed satisfaction with the health care they received for routine problems such as colds and menstrual pain. That girls' physical health needs are met is corroborated by other sources whom HRW/ACLU interviewed. [528] Girls who need medical care while held in the facilities are required to fill out a form, called a "sick call," requesting a visit to medical staff. [529] An on-site nurse must evaluate the girl's needs, treat her if possible, and refer her to an outside provider if necessary. According to residents of Tryon, there is no physician, eye doctor, or dentist on-site, but they do visit the facility regularly. [530]

Some girls reported problems with various aspects of the provision of health care at the facilities. In their grievances, girls complain that their requests for medical care are ignored, even after they submit multiple sick call forms regarding the same medical complaint. Other girls complain that they had to wait for days, weeks, or even months before they receive care. [531] Yet others complain that the on-site nurse is only available until 6 p.m., rather than 24 hours a day, or that on-site staff is reluctant to refer girls' problems for specialist care, even when the problem cannot be treated effectively at the facility. [532]