So What’s the Big Deal About the Variances?: A Summary of the OCEAN Article: Creating Civil Commitment Chaos

The below is OCEAN Newsletter Volume 1, Issue 7, Article 4 (Dec. 23, 2019) published by Russell J. Hatton & Daniel A. Wilson from the gulag in Moose Lake Minnesota.

Note: Some citations were omitted in this article because they are in the original document: Creating Civil Commitment Chaos, by MSOP lawyers in collaboration with OCEAN

MSOP clients should not have to sift through legal jargon and political bureaucracy to understand the laws that govern their treatment. However, we are compelled to try. In this article we are going to explain how MSOP circumvents the law to keep people committed, even if the person does not have a mental illness.
However, in their attempt to sidestep the law to hold as many human beings, for as long as possible, MSOP has turned a simple issue chaotic. Be patient with us while we explain the MSOP scheme, and attempt to shed light on how complex MSOP has become.
The MSOP does not use the same Medical Model approach to treating their clients, as the courts did for their decision to commit them. It’s like a court ordering someone to attend AA meetings. The person is brought to a building that says “AA Meetings” on the side of the building. They go in, get a cup of coffee, sit down at the meeting and start listening. After only a few minutes, someone starts talking about how Winston’s desire for social justice compels him to seek a life of freedom, despite the Big Brother party agenda … That’s when the person realizes there at a book club meeting-not AA. “Oh, no big deal” They think. “I’ll just leave and go to the right place.” That’s when they realize that they are not allowed to leave and the worst part: no one will listen
to them screaming, “I’m in the wrong place!”

“Court in, court out” is the MSOP mantra. However, it should change to “Court in-20 year book club-Court out.” what’s the book club have to do with it? Nothing. That’s the problem. When clients go back to court, they find themselves talking a language the court cannot understand, because the client never received treatment for their “illness.” But here is where it gets even crazier: they never had an illness. Minnesota tax payers spent $118,000,000 million I in fiscal year 2019 on a treatment that MSOP is not licensed to provide. MSOP is licensed to provide treatment, ” … subject to the standards of Chapter 245A and Minnesota Rules, part 9515.3000 to 9515.311 O.” 2 Meaning these are the standards MSOP is required to follow when they administer treatment to their clientele. However, there is a law in Minnesota that allows the DHS commissioner to depart from the rules that govern MSOP. This departure is called a “variance.” A variance is like a waiver that allows the license holder to so something other than what the license would normally permit. 3

In 2005 MSOP applied for a “permanent variance” to Minnesota Rule 9515.3030 subpart 2. The rule states, “A psychiatrist must evaluate each person within three working days after the person is admitted and reevaluate each person at least annually.” A permanent variance is restricted to protect detainees from being negatively affected by these changes. For instance, a permanent variance, ” … cannot compromise the qualifications of staff to provide services … ” However, with the variance that alters Minnesota rule 9515.3030 subpart 2, MSOP no longer has to allow psychiatrists to evaluate detainees. Instead, MSOP can use either a “licensed mental health professional” or a “licensed-eligible psychologist.” Although the variance is ” … compromising the qualifications of staff. .. ” MSOP never gave a time limit for it and has renewed it repeatedly throughout the years. The variance has remained in effect since 2005.

Not all MSOP detainees need treatment. Minnesota Rule 9515.3030 subpart 2 is governed by a particular Minnesota law, and must reflect the intent of that law. The law that governs the rule states, in relevant part, “The commissioner shall establish an evaluation process to measure outcomes and behavioral changes as a result of treatment compared with incarceration without treatment, to determine the values, if any, of treatment in protecting the public.” 4 This law tells us that it is not necessary to provide treatment to all detainees. Some will need it. Some will not. In addition, the law that governs a detainee’s discharge from MSOP says if a detainee ” .. .is no longer in need of treatment…” he must be released. 5 However, without each detainee getting evaluated by a psychiatrist, there is no way to know who no longer needs treatment.
One particular variance allows a “licensed mental health professional” or a “licensed-eligible psychologist” to do assessments. But neither is a psychiatrist who is able to identify mental illness. The Minnesota Judiciary has consistently ruled that a person must have a “mental illness” to be committed to MSOP. A “Person who is mentally ill” is defined by Minnesota law as ” … any person who has an organic disorder of the brain or a substantial psychiatric disorder … ” which is often demonstrated by ” … a recent attempt or threat to physically harm self of others … ” 6 In addition, the DSM-5-used by psychiatrists to diagnose mental illness-requires that an individual display a “current presentation” of mental illness for the detainee to get branded with a diagnosis. For sexual disorders, “current presentation” is within 6 months. In other words, if the detainee has not shown any signs of mental illness, as described by the DSM-5, then he is in remission, and must be released.

Mental illness is a medical issue in the same way the illness of cancer is a medical issue. Do you go to a medical doctor to get chemotherapy for a cancer you used to have? No. You would only get chemo if you currently have cancer. In this way, medical illness is no different than mental illness. For someone to get civilly committed in Minnesota, a court has to find that the person is “mentally ill.” According to Minnesota law, these individuals must go to a facility that, ” … is consistent with the persons treatment needs … ” 7 So what kind of treatment does the detainee need? Well, they clearly need a type of treatment that addresses the clients current and recent behaviors. Therefore, an evaluation by a psychiatrist is in order. The reason is simple: a psychologist looks at past behaviors to conclude whether or not commitment is necessary. But a psychiatrist look at recent behaviors to determine whether the detainee must be released. Therefore, the kind of treatment that would be ” … consistent with the persons treatment needs … ” would be a treatment provided by a psychiatrist. A “licensed mental health professional” or a “licensed-eligible psychologist” cannot provide adequate treatment to the MSOP client.

What was originally a straight forward rule is now two pages of confusion. The qualifications of staff were compromised by the variance which substituted a psychiatrist for multiple clinical staff. Now, if the detainees thought to have a mental illness, his case may be addressed by one of 11 different clinical staff, each with a different set of credentials. None of these staff persons are psychiatrists. If a psychiatrist does ever get involved with a detainees case, it could take up to 19 days after admission for the psychiatrist just to review the detainees record, if they ever do at all. When MSOP replaced the psychiatrist, they settled for a “licensed mental health professional” or a “licensed-eligible psychologist.” This change made it impossible for detainees to receive the type of quality treatment they need. A psychologist is trained to look at past issues and behaviors-the same issues and behaviors used to determine the detainees initial commitment-and use them to consider continued commitment. The result: hundreds of Minnesotans remain unlawfully detained because it is impossible to treat the unique clientele of MSOP with a treatment model that does not abide by the rules of the license. Many of the laws used to govern MSOP are the same laws used to govern hospitals in Minnesota. However, Clinical Director of MSOP, Jannine Herbert, gave testimony of March 5, 2015 before The Honorable Donovan Frank, and explained that the MSOP has not been a hospital since at least 2008. In fact, according to Mrs. Herbert, MSOP is a “treatment program” that deals with folks who are “not sick.” In addition, one of the variances states, “The vast majority of patients committed to the Minnesota Sex Offender Program do not experience symptoms of mental illness that requires psychiatric treatment. .. ” This is a problem because one cannot receive medical care and attention at a facility that does not provide medical services. More importantly, the law requires that in order to lock someone up in a mental institution, they need to have a mental illness.
On December 11, 2019 Ms. Johnston, Executive Director of MSOP, held a forum for detainees to ask her questions. She told detainees at MSOP that she had requested funding from the Minnesota legislature to expand the MSOP program. She was then asked by a detainee if she would be willing to get a psychiatrist to evaluate the entire MSOP population, potentially finding hundreds of detainees ready for discharge. The client even referred to the statement made by Eric Janus, Professor of Law at the Mitchell Hamline School of Law, ” … over 400 human beings are being held unconstitutionally … ” Ms. Johnston said that it is “too expensive” and “out of [her] control” to authorize such evaluations. Another detainee then told her that if she were to ask the DHS commissioner to expire the variance, she likely would. The law would then require Ms. Johnston to hire a licensed psychiatrist to evaluate the MSOP detainees and the legislature would certainly fund the evaluations, especially if doing so is in the interest of the law. However, Nancy Johnston said that she did not know anything about the variances, even though she gave testimony on March 2, 2015, before The Honorable Donovan W. Frank, about them, and she signed the paperwork.

OCEAN is about speaking the Truth, and not afraid of being blunt about it! I’ve [Russell] listened to guys after the Dec. 11th R.R. show and I hear their desperation, their gullibility to want to believe Ms. Johnston and Mr. Halverson really are doing what they’re doing to “help” men in here. All of it was a ploy to present more lies to the governor and legislature. It was like they were giving their presentation to someone else. It’s probably the same presentation they’ve been giving to communities all over Minnesota. A tactic of “let us convince you of how “dangerous” these men are so you’re afraid of them moving into your community.
At the same time let’s try to convince you that MSOP needs legislature to fund 50 more beds for CPS so we can continue to hold them for however long we want to while still committing men who we’re really not sure need to be committed to a pseudo-treatment program at the misperception fo providing “medical treatment”.
[DW][RH] “Once social change begins, it cannot be reversed. You cannot uneducate the person who has learned to read.
You cannot humiliate the person who feels pride. You cannot oppress the people who are not afraid anymore.
1 DHS Website.
2 Minnesota Department of Health license.
3 Minn. Stat. § 245A.04 Sub. 9 Variances.
4Minn. Stat. § 246B.04 RULES; EVALUATION.
5Minn. Stat. § 253D.31 DISCHARGE.
6Minn. Stat. § 253B.02 Subd. 13 (a). Person who is mentally ill.
7Minn. Stat. § 253D.07 Subd. 3.

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