SUMMARY:  Some individuals and organizations have raised concerns about Kendra’s Law (New York’s law for assisted outpatient treatment). Most of these fears are based on misinformation or misunderstanding. In fact, Kendra’s Law has been proven to successfully reduce the incidences of hospitalization, homelessness, arrest, incarceration, and victimization of those in the program, as well as harm to self and harm to others.

MYTH  Kendra's Law doesn’t work.

REALITY  Two separate studies over 10 years proved Kendra’s Law

• Helps the mentally ill by reducing homelessness (74%); suicide attempts (55%); and substance abuse (48%)
• Keeps the public safer by reducing physical harm to others (47%) and property destruction (43%)
• Saves money by reducing hospitalization (77%); arrests (83%); and incarceration (87%).
  

MYTH  Enhanced Voluntary Services (EVS) are an alternative to Kendra’s Law.

REALITY  EVS programs and Kendra’s Law serve two mutually exclusive populations. EVS programs serve those who ‘voluntarily’ accept services. Kendra’s Law, by definition (9.60(c)(5)), is for those won’t accept voluntary services.  If it was the ‘threat’ of a court-order that kept the EVS group compliant, then Kendra’s Law needs to be made permanent to continue to help the EVS group.

MYTH  Court orders do not confer any benefits beyond those gained from increased services.

REALITY  The 2009 study researched this issue and found

“The increased services available under AOT clearly improve recipient outcomes, however, the AOT court order, itself, and its monitoring do appear to offer additional benefits in improving outcomes.”

• The likelihood of a hospital admission over six months was  “highly statistically significant” and lower among AOT recipients than among voluntary recipients.
• AOT patients were less likely to be arrested than their voluntary counterparts
• Persons receiving AOT for 12 months or more had a substantially higher level of personal engagement in treatment than those receiving services voluntarily.

MYTH  Assisted Outpatient Treatment is racist.

REALITY  “We find no evidence that the AOT Program is disproportionately selecting African Americans for court orders, nor is there evidence of a disproportionate effect on other minority populations. Our interviews with key stakeholders across the state corroborate these findings.”

MYTH  There are unacceptable geographic differences in how AOT is implemented.

REALITY There is little variation in how AOT is implemented in counties that use it. Some counties found it difficult to use due to the lack of a qualified psychiatrist, the inability of consumers to stipulate to findings, lack of judicial education and other factors.  (See TAC Fact Sheet for changes to make it easier and less costly for counties.). Other geographic disparities are appropriate given some counties are urban and others rural; some have more hospitals and others have more prisons. 

MYTH  Kendra’s Law will lead to a roundup of mentally ill individuals who will be forced into treatment.

REALITY  Kendra’s Law’s narrowly-focused eligibility criteria, stringent multi-layer administrative requirements, independent judicial review and strong due process protections protect against misuse. Of the 650,000 individuals served by OMH, only 2,300 (.003%) have been allowed into Kendra’s Law.

MYTH  Kendra’s Law should not be made permanent because the legislature will lose its ability to oversee and monitor the program.

REALITY  The legislature has the ability to continue to monitor all government programs including those that are permanent.

MYTH  Putting a new sunset on Kendra’s Law will accomplish the same thing as making it permanent.

REALITY  Kendra’s Law should be made permanent because it is successful at improving patient outcomes, keeping the public safer, and saving government money. Kendra’s Law should be made permanent so evaluation of patients for violence and inclusion in the program becomes a routine part of discharge planning. Kendra’s Law should be made permanent so providers can make the infrastructure investments they need to make it work.  Kendra’s Law should be made permanent to protect the legislature from pressure from lobbyist. Kendra’s Law should be made permanent to protect the mental health community from redebating what has been proven. 

MYTH  Kendra's Law is unconstitutional.

REALITY  Kendra’s Law in New York has been challenged twice and the courts found it to be constitutional. From Correctional Mental Health Report: "In sum, the law has thus far survived every challenge; challenges ranging from attacks on the law's essence to attacks on operational detail." (1)

From an article in the New York Law Journal: "'Kendra's Law provides the means by which society does not have to sit idly by and watch the cycle of decompensation, dangerousness and hospitalization continually repeat itself. Moreover ... Kendra's Law is narrowly tailored to achieve these goals within the framework of the involuntary and emergency commitment procedures of the Mental Hygiene Law,' Justice Cutrona wrote."

MYTH  Kendra's Law will be used indiscriminately, affecting a huge number of New Yorkers with mental illness.

REALITY  Kendra's Law is affecting less than 1/2 of one percent of all New Yorkers with either manic-depressive illness (bipolar disorder) or schizophrenia in any given year. According to the New York State Office of Mental Health, between its implementation and September 2002, there were 7,360 investigations, resulting in 2,216 court orders. That averages to approximately 738 orders per year during the first few years of the program.

According to the National Institutes for Mental Health (NIMH), 2.3% of Americans have either bipolar or schizophrenia. The 2000 census figure of New York's population is 18,976,457. Therefore, there are 436,459 people with either of those illnesses in New York. That means that only 738 of 436,459 people (less than 1/4 of 1 percent) per year have been placed under an initial court order.

These percentages are not for how many people are under Kendra's Law orders at a given time, but for orders initiated during a calendar year. As initial orders are for 6 months and many will not be renewed, the number of people under an order at any given time should be less - perhaps significantly less.

It is likely that this average of those affected by Kendra's Law is somewhat lower that it will be in future years, because the program was very slow to develop. However, this remains a very small percentage of the population with severe mental illnesses - the small number of people who really need AOT.

MYTH  Every investigation will result in a court order.

REALITY  There have been 7,360 investigations initiated for eligibility since the law took effect on Nov. 8, 1999 (463 of those were ongoing as of Sept. 3, 2002). These have resulted in 2,216 court orders. That means that in about one in three instigated investigations, the person ends up under an order. Why?

Almost half of completed investigations end with a determination that no action is needed. Of the 7,360 investigations, in 3,282 of them it was determined no further action was necessary.

Of those that result in action, about 30% are service enhancements only. 1,403 of the 4,572 investigations that were acted upon resulted in "services enhancements." This category is somewhat murky because in some counties these upgraded services include written treatment contracts (which are unenforceable, but may offer some incentive) and in others they do not. Nonetheless, all of these people are being helped to at least some extent by the law.

MYTH  Kendra's Law will put anyone with a history of serious mental illness at risk for commitment.

REALITY  The law has strict eligibility criteria and numerous consumer protections. A patient may be placed in assisted outpatient treatment only if, after a hearing, the court finds that ALL of the following criteria have been met. The consumer must:

• be eighteen years of age or older; and
• suffer from a mental illness; and
• be unlikely to survive safely in the community without supervision, based on a clinical determination; and
• have a history of non-compliance with treatment that has:

1. been a significant factor in his or her being in a hospital, prison or jail at least twice within the last thirty-six months or;
2. resulted in one or more acts, attempts or threats of serious violent behavior toward self or others within the last forty-eight months; and

• be unlikely to voluntarily participate in treatment; and
• be, in view of his or her treatment history and current behavior, in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in:

1. a substantial risk of physical harm to the consumer as manifested by threats of or attempts at suicide or serious bodily harm or conduct demonstrating that the consumer is dangerous to himself or herself, or
2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm; and

• be likely to benefit from assisted outpatient treatment; and
• if the consumer has a health care proxy, any directions in it will be taken into account by the court in determining the written treatment plan. However, nothing precludes a person with a health care proxy from being eligible for assisted outpatient treatment.

MYTH  Assisted outpatient treatment does not work.

REALITY  Based on preliminary findings (2) for the first 141 people in assisted outpatient treatment under Kendra's Law as of January 2001, those in the program have experienced a:

• 129% increase in medication compliance;
• 194% increase in case management use;
• 107% increase in housing services use;
• 67% increase in medication management services use;
• 50% increase in therapy use;
• 26% decrease in harmful behavior; and
• 100% decrease in homelessness.

Studies in North Carolina, Massachusetts, Minnesota, Hawaii, Arizona and other states also prove that assisted outpatient treatment works. Of the twelve studies to date, ten showed benefits that include reduced hospital stays, violence and arrests, and improved chances of recovery for people with severe mental illnesses. The most recent study from North Carolina, recognized as the best and most comprehensive of all the studies, demonstrated the following:

• Long-term assisted outpatient treatment (LT-AOT) reduced hospital admissions by 57% and length of hospital stay by 20 days compared to individuals without court ordered treatment. The results were even more dramatic for individuals with schizophrenia and other psychotic disorders for whom LT-AOT reduced hospital admissions by 72% and length of hospital stay by 28 days compared to individuals without court ordered treatment.
• A 36% reduction in violence among severely mentally ill individuals in LT-AOT (180 days or more) compared to individuals receiving less than LT-AOT (0 to 179 days). Among a group of individuals characterized as seriously violent (i.e. committed violent acts within the 4 month period prior to the study), 63.3% of those not in LT-AOT repeated violent acts while only 37.5% of those in LT-AOT did so. LT-AOT combined with routine outpatient services reduced the predicted probability of violence by 50%.
• Another significant finding of the North Carolina study was that for individuals who had a history of multiple hospital admissions combined with arrest and/or violence in the prior year, LT-AOT reduced the risk of arrest by 74%. The predicted risk of being arrested for individuals with LT-AOT was 12%, compared to 47% for those who had no AOT.

MYTH  Andrew Goldstein, the man who pushed Kendra Webdale to her death, had repeatedly sought out treatment but could not get it.

REALITY  In 1998 alone, the State of New York and the federal government expended $95,075 for Andrew Goldstein's mental health and residential care. The New York State Commission on Quality of Care for the Mentally Disabled and the Mental Hygiene Review Board investigated and issued a report on the history of services and treatment for Andrew Goldstein (pseudonym David Dix).

The Commission reported that in the two years prior to pushing Kendra Webdale to her death in front of a New York City subway train, Goldstein received 199 days of inpatient and emergency room services, on 15 different occasions, in six different hospitals from1997 to 1999. Four different clinics provided outpatient services in this time period.

This is hardly the profile of a patient who was refused services. In fact, it was Goldstein who often refused services. He consistently stopped taking his medication after discharge from a hospital unless he was closely monitored. When he wasn't taking medication, he exhibited hallucinations, delusions, and unprovoked acts of aggression. On some occasions, when his untreated symptoms deteriorated to the point where he suffered anxiety, insomnia, or other unpleasant conditions, he went to an emergency room seeking relief. Other times, he was brought to the emergency room following a violent outburst.

For a period of approximately four years, while living in supervised residential programs, Goldstein remained medication-compliant and participated in treatment. He chose to leave the program to live on his own. Shortly after leaving, he was picked up by police after he acted aggressively in a supermarket. He returned to the supervised residence but, within months, chose to leave again. Subsequently, he refused placements offered to him in supervised residences, even though it was obvious to hospital social workers and Goldstein's mother that he needed structure, support, and medication monitoring to stay well.

Instead, the two years prior to Kendra Webdale's death were characterized by repeated emergency room visits, medication noncompliance after discharge, and at least eight incidents of unprovoked violence against others. Whenever he requested services, he either changed his mind before arrangements could be made or failed to follow through. On two occasions when he was willing to accept placement in a supervised residence, the system did not respond quickly enough before he changed his mind and opted to be discharged to his apartment instead. At no point during this time did he appear to take his medication regularly.

There is no question that the system failed Andrew Goldstein and consequently Kendra Webdale. Since New York State had no assisted treatment law at that time, there was little that could be done for someone like Mr. Goldstein who failed to stay in treatment, opted to live independently, refused services, and was medication noncomplaint. That is, until Kendra's Law was passed.

SOURCES

(1) For a full review of case law, see Fred Cohen's article in Correctional Mental Health Report, "Assisted Outpatient Treatment: Review of New York Case Law - And Beyond."

(2) New York State Office of Mental Health web site; statewide AOT report as of June 1, 2001 (viewed June 19, 2001). New York State Office of Mental Health, Progress Report on new York State's Mental Health System (Jan. 2001), pp. 16-18.

Copyright 2011 Treatment Advocacy Center - reproduction permitted with attribution