Correctional Mental Health Report
Reprinted with permission. This article appeared in III Correctional Mental Health Report 1, (July/August 2001). All rights reserved.
By Fred Cohen
Assisted Outpatient Treatment (AOT)1 laws are hotly debated in the community of mental health care providers and recipients. Dr. E. Fuller Torrey's, Treatment Advocacy Center (TAC) is in the forefront in advocating for such laws. Groups of ex-patients, often self-styled as consumers or "psychiatric survivors", and the Church of Scientology are very much opposed.
Forty-three states have some form of AOT with New York among the last to enlist. Outpatient treatment consists of treatment outside of inpatient or outpatient status in a hospital setting and may include a variety of community residential placements.
The individual must follow a professionally prescribed plan which is approved by a court and which importantly includes a way to regularly monitor the ingestion and effect of medication.
Among the various promotional objectives for AOT laws are:
- A less restrictive alternative to civil commitment and hospitalization.
- A form of conditional release resembling probation or parole.
- Preventive care designed to prevent deterioration; enhance safety; and enhance the life of the individual.
Professor Ken Kress of Iowa, clearly the leading legal scholar in this area, strongly supports such laws and opts for the preventive objective.2 Whether, and to what extent, AOT laws are effective will be mentioned later in this article.
The AOT law in New York is popularly known as Kendra's Law3, M.H.L. 9.60. It became effective November 8, 1999 and a handful of lower court judicial decisions now are available as some sort of barometer of the law's constitutionality and practical problems. In sum, the law has thus far survived every challenge; challenges ranging from attacks on the law's essence to attacks on operational detail.
In The Matter of Leonel Urcuyo, 714 NYS.2d 862 (Sup. Ct. Kings Co. 2000), is the earliest, and perhaps most important, of this first wave of legal challenges. It was initiated, and appropriately so, by New York's, Mental Hygiene Legal Service, a type of public defender service for persons with mental illness. Justice Cutrona carefully examined the first constitutional challenge to the AOT law and ultimately upholds the law.
The key issue in Urcuyo is the eventually rejected claim that in order to grant a petition for AOT there must be a judicial finding by clear and convincing evidence that the individual lacks the capacity to make a reasoned treatment decision regarding the proposed treatment plan. This challenge derives importantly from Rivers v. Katz, 495 N.E.2d 337 (NYS, 1987), which held as a matter of state constitutional law that no person who is decisionaly competent may be forcibly medicated and held also that competence ultimately must be judicially determined.
Justice Cutrona rejects the analogy and thus the challenge, but before further examination of this particular issue it will be useful to reproduce important sections of the law.
The New York legislature found that:
"... there are mentally ill persons who are capable of living in the community with the help of family, friends and mental health professionals, but who, without routine care and treatment, may relapse and become violent or suicidal, or require hospitalization. The legislature further finds that there are mentally ill persons, who can function well and safely in the community with supervision and treatment, but who without such assistance, will relapse and require long periods of hospitalization. The legislature further finds that some mentally ill persons, because of their illness, have great difficulty taking responsibility for their own care, and often reject the outpatient treatment offered to them on a voluntary basis. Family members and caregivers often must stand by helplessly and watch their loved ones and patients decompensate. Effective mechanisms for accomplishing these ends include: the establishment of assisted outpatient treatment as a mode of treatment; improved coordination of care for mentally ill persons living in the community; the expansion of the use of conditional release in psychiatric hospitals; and the improved dissemination of information between and among mental health providers and general hospital emergency rooms..."
MHL 9.60(a)(1) defines Assisted Outpatient Treatment:
"(1) 'assisted outpatient treatment' shall mean categories of outpatient services which have been ordered by the court pursuant to this section. Such treatment shall include case management services or assertive community treatment team services to provide care coordination, and may also include any of the following categories of services: medication; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; educational and vocational training or activities; alcohol or substance abuse treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for persons with a history of alcohol or substance abuse; supervision of living arrangements; and any other services within a local or unified services plan developed pursuant to . . . this chapter, prescribed to treat the person's mental illness and to assist the person in living and functioning in the community, or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in suicide or the need for hospitalization."
In order to obtain an AOT order pursuant to Kendra's Law, the petitioner must prove at a court hearing, by clear and convincing evidence, that the patient meets each of the criteria enumerated in MHL 9.60(c). These criteria are, inter alia, that:
- the patient is eighteen years of age or older; and
- the patient is suffering from a mental illness; and
- the patient is unlikely to survive safely in the community without supervision, based on a clinical determination; and
- the patient has a history of lack of compliance with treatment for mental illness that has: (i) at least twice within the last thirty-six months been a significant factor in necessitating hospitalization in a hospital, or receipt of services in a forensic or other mental health unit of a correctional facility or a local correctional facility, not including any period during which the person was hospitalized or incarcerated immediately preceding the filing of the petition or; (ii) resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months, not including any period in which the person was hospitalized or incarcerated immediately preceding the filing of the petition; and
- the patient is, as a result of his or her mental illness, unlikely to voluntarily participate the recommended treatment pursuant to the treatment plan; and
- in view of the patient's treatment history and current behavior, the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others as defined in section 9.01 of this article; and
- it is likely that the patient will benefit from assisted outpatient treatment; ...
At the hearing, the physician must testify and explain the patient's proposed treatment plan and the rationale of each category of treatment proposed. MHL 9.60(i)(1).
If the physician recommends that medication be included, he must provide additional information and testify about "the types or classes of medication recommended, the beneficial and detrimental physical and mental effects of such medication, and whether such medication should be self-administered or administered by an authorized professional." MHL 9.60(i)(2). Furthermore, if the physician recommends blood or urine screening for illegal substances, he must testify about the patient's history of substance abuse and relate that history to the possibility of relapse or deterioration. MHL 9.60(i)(1).
Finally, the physician must testify, and the court must find by clear and convincing evidence, that AOT is the least restrictive alternative for the patient. MHL 9.60(h)(4).
Returning to Urcuyo itself, it is important to note that Rivers v. Katz is perhaps this country's most protective (or restrictive, depending on your viewpoint) legal decision in the area of forcible medication. Rivers is far more protective than the Supreme Court's decision in Washington v. Harper, 494 U.S. 210 (1990), which did not read the Constitution to require either incompetence or a judicial decision to forcibly medicate inmates. See Fred Cohen, The Mentally Disordered Inmate And The Law § 9.5 et. seq. (1998)
Rivers deals directly with civilly hospitalized patients and the unadorned decision whether to administer psychotropic medications against the patient's will. Kendra's Law provides no independent basis for involuntary medication; it contemplates competency; and if the agreed upon treatment plan breaks down, the individual retains all of the rights possessed by others facing, and during, any hospitalization. Thus, Rivers is not sidestepped by the AOT law, its application is, in effect, deferred.
Kendra's Law, however, does provide for an involuntary evaluation period not to exceed seventy-two hours. Any further retention must be based on the existing law's requirements as to admission and retention. This seventy-two hour evaluation period is deemed reasonable in Urcuyo especially since a court preliminarily will have decided that an AOT order is needed and that should the patient fail to comply with the treatment plan he or she is likely to become dangerous to self or others.
Kendra's Law is found to be an effort to avoid hospitalization and coerced medication and there is ample precedent for the seventy-two hour hold even without a finding of dangerousness, e.g. where a voluntary mental hospital patient seeks release and the facility staff seeks to hold for further evaluation.
The equal protection challenge raised here also fails. That is, persons subject to the AOT law are not deprived of their right to refuse medical treatment and no punitive remedy is applied. That AOT's may be treated somewhat differently from those found incapacitated or involuntarily committed, rules the court, is not enough to show that such slight differences are irrational. Persons subject to AOT orders are in the community and Kendra's Law is characterized as an effort to keep them there and maximize, not diminish, liberty interests.
In The Matter of Martin ____, N.Y. Law J. 25 (Jan. 9, 2001)*, followed the Urcuyo decision (Jan. 9, 2001), and tracked most of the Urcuyo legal findings to the same conclusion. Martin featured a number of amici with N.A.M.I. of New York, and The Treatment Advocacy Center appearing in support of Kendra's Law and the New York Civil Liberties Union, the Mental Health Association of New York, and New York Lawyers for the Public Interest, Inc. arguing against the law's constitutionality.
Justice LaTorella pointed out that the petitions in Urcuyo ultimately were withdrawn making it impossible to appeal and obtain an appellate ruling. The expectation, then, is that the Martin petition will remain viable and appealable. Clearly, the AOT-type laws have their own cachet and they represent a somewhat novel approach to community treatment of persons with mental illness.
The challenge in Martin is two-fold: (1) There must be a finding of incapacity before a person may lose the fundamental right to control the course of his own mental health care; and (2) the prospective patient must have notice and an opportunity to be heard in court before being forcibly detained for a seventy-two hour observation period.
Justice LaTorella actually was not asked to treat this challenge as an attack on the facial validity of Kendra's Law. Rather, counsel asked that he engage in judicial interpretation, require a finding of incompetence as per Rivers, and thereby save the statute.
The Justice upheld the law as written and, as in Urcuyo, he rejected the application of Rivers v. Katz because that case deals directly with forcible medication while the AOT law, with a host of procedural protections and required substantive findings, does not even approximate the invasiveness of forcible medication. This is a legislative plan, based on the police and parens patria power, that seeks to involve a person with mental illness in treatment planning, in the lest restrictive environment, where there is a history of such illness and where relapses seem preventable and likely to reduce possible harm to one's self and others.
The second point argued is rejected and for precisely the same reasons given in Longo, discussed infra at [pg 11].
Evidence of Lack of Compliance: NYS, MHL § 9.60(c)(4)
Shortly before deciding Urcuyo, the same Justice Cutrona decided In The Matter of Dailey, 713 NYS.2d 660 (Sup. Ct. Kings Co.. 2000), which raised questions about the patient's history of lack of compliance with treatment. The somewhat awkwardly drafted Kendra's Law refers to lack of compliance that has occurred at least twice in the last thirty-six months and been a significant factor in necessitating, inter alia, hospitalization.
Petitioner here, the psychiatric director of a hospital, referred to the individual's two hospitalizations within that thirty-six month window while the respondent sought to exclude acts of non-compliance along with the current hospitalization itself. The court, however, ruled that the statute provides that any period of time during which the person was hospitalized immediately before filing the petition is not to be included in calculating the thirty-six months. Thus, the thirty-six month window actually is expanded by exempting a current hospitalization from the calculation.
In addition, acts of non-compliance with treatment may be extracted from the current hospitalization.4
The court seems clearly right in stating that the legislative objective here is to end the cycle of non-compliance once patients are discharged from hospitals or similar facilities. Any instances of noncompliance, no matter how recent, are relevant to predicting future compliance.
Doctor-Patient Privilege Issues
In The Matter of Sullivan, 710 NYS.2d 804 (Sup. Ct., Queens Co., 2000), dealt with the New York requirement that the petition be accompanied by an affirmation or affidavit of a physician who has personally examined the subject of the petition within ten days of submission and that the examining physician recommends AOT and is willing to so testify.
In this instance the examining physician was also the patient's treating psychiatrist at Elmhurst Hospital. The patient sought to dismiss the petition arguing that the doctor-patient privilege prevents the treating doctor from submitting information acquired while attending a patient in a professional capacity.
While it is true that a treating psychiatrist may not act as the petitioner, nothing explicitly in the law prevents the treating doctor from also being the examining doctor. The same doctor, however, may not petition, treat and examine.
Where, as here, the treating and examining doctor are the same there are serious questions of privilege and confidentiality; questions the court manages to evade because counsel for the patient failed to specify what information was used which may be characterized as confidential and privileged.
The motion to dismiss the petition is denied but the privilege question remains clouded and undecided.
Psychiatrists, of course, have both a legal and ethical obligation to maintain secrecy in matters involving the professional-patient relationship. There are well-accepted exceptions to this rule:
- Where the patient puts his or her mental state at issue in a civil or criminal proceeding.
- Where there is a conflict between confidentiality and a statute, which is within the state's police power.
- Where there is a Tarasoff-like duty to warn.
- Where a court orders an examination.
Opponents of the AOT laws do not view these laws as benign; they are viewed as the exercise of "coercive power". Proponents, of course, may agree that while there is an element of the police power involved (danger to others) the overriding objective is benign and helpful. Depending on one's characterization, the treating doctor who reveals confidentially obtained information either is saving lives on the street or saving the patient from himself.
As a matter of policy, it does seem as though the treating doctor should not provide an affidavit containing confidential information. It is more time consuming and ultimately more expensive to require an independent assessment by a doctor who does not have a treatment relationship with the patient but that process is more respectful of confidentiality than the current New York law. See Michael L. Perlin, Mental Disability Law: Civil and Criminal, Sec. 12.37, 12.37A (1991 Cum. Supp.), for an excellent discussion on point.
No Hearing Required to Precede Order for Enforced Psychiatric Examination
In The Matter of Director of Community Services for an Order Authorizing AOT for Longo , 715 NYS.2d 833, (2000), the specific question presented was whether Kendra's Law can (or should) be read to require a judicial hearing before a court may order the individual to be taken into custody for an AOT examination.
The respondent refused to consent to such examination and using an Order To Show Cause petitioner sought the assistance of police. Kendra's Law does specify that where "reasonable cause" is found then the court may direct the police to take the respondent into custody pending the requisite examination. The Order to Show Cause itself sets out grounds that establish reasonable cause to believe that the petition for AOT is true and obviates the need for any hearing.
No constitutional issues are discussed in this brief opinion that deals entirely with a textual analysis of New York's Kendra's Law. Justice Connell does suggest that a pre-arrest hearing may be appropriate in some cases but this is not such a case. Reading between the lines it would appear to mean that where the facts alleged are dubious or insufficient then a hearing to establish cause for the loss of liberty may be in order.
Effectiveness: The Jury is Out
Professor Ken Kress has hypothesized about the numerous potential benefits of AOT laws. He believes AOT laws may reduce: (1) incarceration costs, (2) interactions between police and persons with mental illness, freeing police time for other matters, (3) homelessness, (4) stigma, (5) permanent damage to the neurological system of individuals with mental illness, (6) suicides, (7) welfare costs, and (8) victimization of persons with mental illness. Outpatient commitment will also (9) distribute scarce mental health resources more equally and (10) increase mental health consumers' overall autonomy.5 In a forthcoming work, the author adds as benefits a reduction in arrest rates and violent behavior by persons who suffer with serious mental illness as well as victimization of such persons. In addition, the standard of living for persons handled under AOT may well improve.
These are, of course, rather extravagant claims and as yet there is little research to support them. A study conducted by Policy Research Associates - The New York City Bellevue Study - has been said to demonstrate that AOT does not work.
However, methodological flaws appear to bias that study - e.g. disproportionate number of substance abusers; confusion as to who actually was in the control group; excluding the most potentially dangerous; and a small sample size - while studies conducted in North Carolina appear more valid and affirmative.
A study of 262 persons from a nine county catchment area found that outpatient treatment for six months or longer significantly decreased violence.6 The same study showed a significant reduction in arrest rates with long term AOT (at least six months)7 Individuals who has a history of multiple hospital admissions combined with arrest and/or violence had only a 12% risk of arrest on long term AOT compared with 47% risk for those with no AOT. It appears that AOT is effective when it is viable for over six months and community treatment resources are available. One without the other appears to guarantee failure.
Nearly all of the literature examined looked at a population of persons with mental illness who were, or had been, hospitalized or who were homeless and perhaps candidates for hospitalization. Those of us who concentrate on the world of jails and prisons may see some other dimension to the problem.
As the court-appointed Monitor overseeing mental health care in Ohio's prisons, there were numerous occasions when many of us watched an inmate with serious mental illness leave the prison system for an unreceptive community. Such inmates did well when they took their medication, had some follow-up, and had some structure in programming. If AOT seems viable for persons who have been hospitalized, it is equally viable - perhaps more so - for a prison or jail population.
Kendra's Law, of course, does refer to the receipt of services on the mental health unit of a prison or jail. I have no information on how often the law is applied to the jail-prison population and, if applied, with what impact. Researchers and foundations would do well to turn their attention to these matters.
The Treatment Advocacy Center, which may be reached at 3300 North Fairfax Drive, Suite 220, Arlington, VA 22201, Phone: 703-294-6001, Fax: 703-294-6010 or , has available a chart summarizing the standard of AOT care in each of the states. In addition, there is a brief summary of the North Carolina study alluded to in the text: E. Fuller Torrey & Mary Zdanowicz, New Study Shows That Long-Term Assisted Treatment Reduces Violence and Hospital Utilization, (undated).
* This is the only citation presently available to us.
1 AOT laws also are referred to as outpatient civil commitment laws.
2 See Ken Kress, An Argument for Assisted Outpatient Treatment for Persons With Serious Mental Illness Illustrated With References to a Proposed Statute for Iowa, 85 Iowa L.Rev. 1269, 1290-91 (2000) (Hereinafter cited as "Argument for.").
3 For Kendra Webdale, pushed to her death in front of a subway by Andrew Goldstein, a person with a long and tragic history of psychiatric illness and who was convicted of murder in the face of an obvious insanity defense.
4 In the Matter of Weinstock, 2001 WL 290238 (N.Y. Sup.), Justice Cutrona relied on Dailey to find that violent acts that occur during a current hospitalization may be used to satisfy the statutes' requirement of serious violent behavior within the last forty-eight months.
5 See Ken Kress, "Argument for.", 85 Iowa L.Rev. 1269, 1353-64 (2000).
6 See Swanson, et al., Involuntary Outpatient Commitment and Reduction of Violent Behavior in Persons with Severe Mental Illness, 176 Brit. J. Psychiatry 324 (2000).
7 See Swanson, et al., Can Involuntary Outpatient Commitment Reduce Arrests Among Persons With Severe Mental Illness?, 28 Criminal Justice and Behavior 156 (2001).