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Should the courts be involved?

June 1, 2006
by MICHAEL LEVIN-EPSTEIN
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Experts debate whether “forced” outpatient treatment makes sense

Should potentially dangerous individuals with mental illness be forced by courts into outpatient treatment?

That question is being heatedly debated today. Lawmakers and behavioral healthcare providers are trying to determine whether courts can—and should—order outpatient treatment for people with mental illness and no record of criminal activity to prevent them from possibly harming themselves or innocent bystanders—such as Kendra Webdale.

In 1999, Webdale was minding her own business on a subway platform in New York City when a man with schizophrenia, who had been in and out of several treatment facilities, pushed her in front of an oncoming subway train, killing her. The man did not have a previous criminal history, and he repeatedly had stopped taking his medication. State legislators reacted quickly, expanding a New York City pilot program permitting courts to order outpatient treatment for individuals who have a history of harmful behaviors and who are unwilling to receive treatment. If a patient refuses treatment, he is hospitalized.

The measure, which became known as Kendra's Law, fueled the court-ordered treatment debate. The law has dramatically reduced hospitalization, homelessness, and arrest and incarceration rates among those with severe psychiatric disorders, supporters assert. According to data released by the New York State Office of Mental Health, more than 80% of those receiving assisted outpatient treatment (AOT), which critics call “forced” outpatient treatment, say it improved their lives and helped them stay well.

Critics say that is not sufficient proof that the law works. They assert the ill-conceived measure just adds to the burden of already strapped treatment facilities and violates the constitutional rights of people with mental illness, many of whom do not commit crimes even if not receiving treatment.

In addition to protecting the public, mandated community treatment statutes, such as Kendra's Law, benefit patients who don't realize that they are ill or require treatment, asserts Mary Zdanowicz, executive director of the national nonprofit Treatment Advocacy Center, which recently received the American Psychiatric Association's Presidential Commendation for its work in this area. “Often, these people have desperate lives. They're homeless, or they've been jailed repeatedly,” she explains. While Kendra's Law affects only a relatively small number of individuals, the costs of inaction are tremendous and can lead to front-page headlines, as happened in New York, notes Zdanowicz.

Although more than 40 states have passed similar laws, the controversy reached fever pitch in New Mexico earlier this year because of the intense involvement of an AOT champion: Albuquerque Mayor Martin Chavez. The mayor became an AOT supporter after a resident with a history of mental illness, who apparently had stopped taking his medication, fatally shot five people, including two police officers. Three years earlier, another Albuquerque man with mental illness, who had been in and out of treatment, shot an officer with her own weapon before he was shot and killed by other officers.

With Chavez's support, the state House of Representatives unanimously passed a version of Kendra's Law, incorporating an incapacity requirement for court-ordered treatment. The state Senate Judiciary Committee approved the bill for a full Senate vote on a 7-2 margin, but the measure got bottled up behind other legislation, according to Barry Bitzer, Chavez's chief of staff.

Lack of time, not an absence of agreement, ultimately killed the bill, agrees Rep. Joni Marie Gutierrez, a key sponsor. “It made it to the floor of the Senate the second to last day of the session, but never got brought up by the senator I asked to sponsor the bill,” she explains. But the proposal will be brought up at the next legislative session that begins in January 2007, say Gutierrez and Bitzer. Gutierrez is working with Gov. Bill Richardson and his cabinet, and she plans to hold public hearings on the measure.

At press time, Chavez also was moving forward on a city ordinance patterned after Kendra's Law, notes Bitzer. While Chavez would prefer a statewide law, a local ordinance would protect people with mental illness and the public in the city until state legislators act, asserts Bitzer. “We see AOT as a small but essential tool when a person is a threat to him/herself or others,” he says.

The bill was crafted to protect patients’ constitutional rights, Bitzer adds. “There are seven criteria that you have to meet—and you have to go through the courts,” he explains. Section 4 of the bill states that a person may be ordered to obtain AOT if the court finds that the person:

  1. is 18 years of age or older;

  2. is suffering from a mental illness;

  3. is unlikely to survive safely in the community without supervision, based on a clinical determination;

  4. has a history of lack of compliance with treatment for mental illness;

  5. is unlikely, as a result of mental illness, to voluntarily participate in the recommended treatment pursuant to the treatment plan;

  6. in view of the person's treatment history and current behavior, is in need of AOT to prevent a relapse or deterioration that would likely result in serious harm to himself or another person; and

  7. will likely benefit from AOT.

Not everyone agrees that Kendra's Law protects the rights of people with mental illness. “Under Kendra's Law, patients who are competent to make decisions, but whose decisions we don't like, are forced to do things they don't want to do,” argues Michael Allen, senior staff attorney with the Bazelon Center for Mental Health Law.

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