T HE E THICS OF A SSISTED O UTPATIENT T REATMENT
I. D EINSTITUTIONALIZATION : P ITFALLS AND P ROMISES
By the mid-1950s, when the number of institutionalized psychiatric patients reached its peak, more than 550,000 inpatients resided in state mental hospitals.148 By the mid-1980s, however, fewer
than 120,000 psychiatric patients resided in state hospitals.149 Several factors encouraged a shift
toward community-based care. By the late 1950s, attitudes toward institutional psychiatry began to change.150 Labeling theorists and small group of radical anti-psychiatrists insisted that psychiatric
diagnoses were no more than convenient labels designed to suppress nonconforming behavior.151 So
labeled, persons deemed mentally ill would in turn reproduce more disturbed behavior. A second critique of psychiatry concerned the benefits of long-term hospitalization. In the years following World War II, a series of exposés called attention to deplorable conditions in state hospitals.152 For
the first time, the emergence of psychotropic medications also offered the possibility of treating people with mental illnesses in the community.153
A further critique of psychiatry came from the civil rights movement. After an initial focus on racial inequality, the postwar civil rights movement gradually expanded to include a concern for the rights of women, the poor and eventually, the civil liberties of people with mental illnesses.154
148 DEINSTITUTIONALIZATION:PROBLEMS AND PROMISE 5 (Richard H. Lamb & Linda Weinberger eds., 2001).
149 GERALD N.GROB, THE MAD AMONG US:THE HISTORY OF THE CARE OF AMERICA’S MENTALLY ILL,
291(1994).
150 PAUL S.APPELBAUM,ALMOST AREVOLUTION:MENTAL HEALTH LAW AND THE LIMITS OF CHANGE 4 (1994).
151Id. at 4-7.
152Id. at 8.
153Id.
64
Civil rights organizations argued that inpatient commitment standards were vague, overbroad and void for failure to consider less restrictive alternatives to involuntary hospitalization.155 State hospital
closures also accelerated rapidly in the late 1960s with introduction of Medicare and Medicaid. When Congress passed Medicaid in 1965, the federal government excluded Medicaid payments for psychiatric services rendered in state hospitals. In response, states discharged large numbers of former inpatients to nursing homes and other congregate care arrangements where Medicaid reimbursement was available.156
While some former inpatients did well in the community, many others did not. Far fewer community mental health centers were created than anticipated, making it difficult for former inpatients to access care.
157 Some former patients refused treatment owing to the symptoms of their
mental illness, while others refused treatment owing to the side effects of their medications and a longstanding distrust of the mental health system.158 Yet, even when the need for treatment was
clear, by the late 1970s, in most states involuntary hospitalization required clear and convincing evidence of dangerousness to self or others.159
155 Lessard v Schmidt, 349 F.Supp. 1078, 1093 (E.D. Wis. 1972).
With the introduction of managed care, the combination of shorter hospital stays and stricter commitment laws fostered a revolving door syndrome. Patients were routinely stabilized in hospitals and released, only to stop taking their medications, decompensate in the community and once again require rehospitilization.
156 GROB supra note 154, at 289-91; see also APPELBAUM,supra note 150, at 50-1.
157 GROB supra note 154, at 283-87.
158 Howard Telson et al., REPORT OF THE BELLEVUE HOSPITAL CENTER OUTPATIENT COMMITMENT PILOT
PROGRAM. Department of Psychiatry, Bellevue Hospital, New York (1999).
65
In New York, “Billie Boggs” and Larry Hogue came to symbolize the failures of the public mental health system. Boggs first appeared on the streets of Manhattan in 1987.160 For almost a
year, Billie Boggs lived on the corner of Second Avenue and 65th Street, urinating and defecating on the sidewalk, burning dollar bills, and screaming obscenities when assistance was offered.161 In
October 1987, Boggs was picked up by a local program designed to remove people with mental illnesses from the streets when their lives were threatened by severe weather and hypothermia.162
When the program attempted to hospitalize her, Boggs sued and won her freedom with the help of the New York Civil Liberties Union.163 According to a psychiatrist, although Boggs suffered from
paranoid schizophrenia, she understood the risks and benefits of treatment; therefore, the hospital could not medicate her against her will.164 As a result, the hospital agreed to her release. After her
discharge, Boggs enjoyed a brief stint as a national celebrity. She appeared on “60 minutes” and “Donahue,” and in February 1988, she appeared as a guest speaker at Harvard Law School.165 Yet,
only a few weeks later, the symptoms of her psychosis reappeared and Boggs was once again panhandling on the streets of Manhattan.166
160 GERALD N.GROB, THE MAD AMONG US:THE HISTORY OF THE CARE OF AMERICA’S MENTALLY ILL, 302
(1994).
161 Jeanie Kasindorf, The Real Story of Billie Boggs: Was Koch Right or the Civil Libertarians? N.Y.MAG., May 2, 1988, at
36.
162Id.
163Id.
164 GROB supra note 154, at 303.
165 Kasindorf, supra note 161, at 44.
166 Rick Hampson, After a Brief Encounter with Fame, Homeless Billie Boggs Fades Away. THE FREE LANCE STAR, Jun 3,
66
Several years later, Larry Hogue gained notoriety among New Yorkers as “the Wild Man of 96th Street.”167 For years, Hogue terrorized New Yorkers on Manhattan’s Upper West Side by
siphoning gasoline from parked cars, igniting newspapers soaked with gas and then stuffing them into tailpipes.168 Over the years, witnesses also observed Hogue jumping into oncoming traffic and
threatening people on the street with a nail-studded club.169 In 1989, Hogue was convicted of
reckless endangerment for pushing a teenage girl in front of an oncoming truck.170 Yet because
these incidents never resulted in serious injury, Hogue never spent more than a year in jail.171 As a
patient at Creedmoor Hospital, Hogue was diagnosed with bipolar disorder, crack addiction and a traumatic brain injury.172 According to his doctors, when Hogue was hospitalized and no longer
abusing drugs, he was calm and amiable. Yet, inevitably following his release, Hogue would stop taking his medications and revert to using drugs, leading him to behave in ways that once again rendered him a danger to himself and others.173
By the early 1990s, the idea for an outpatient commitment law was already well underway in the New York State Legislature. In 1994, the Legislature established a pilot outpatient commitment
167 Leigh Remizowski et al., The Wild Man of 96th St., Larry Hogue, Caught by Police on Upper West Side, N.Y.DAILY
NEWS, May 30, 2009, http://articles.nydailynews.com/2009-05-30/local/17922790_1_96th-larry-hogue-drug-habit.
168 Seltzer v. Hogue, 594 N.Y.S.2d 781, 782 (N.Y. 1993.)
169 Remizowski, supra note 166.
170 Richard Perez-Pena, Crack Addict Found Able to Face Trial, N.Y.TIMES, Dec. 8, 1992, at B3.
171Id.
172Hogue, 594 N.Y.S.2d at 783.
67
program at Bellevue Hospital in lower Manhattan.174 In a twist of fate, Andrew Goldstein visited the
psychiatric emergency room of Bellevue Hospital on at least two occasions in 1998, during the tenure of the pilot program, complaining of auditory hallucinations and sleep deprivation.175 After a
few days in the hospital, Goldstein was released.176 A subsequent investigation into the quality of
care Andrew Goldstein received found that Goldstein repeatedly sought help for hallucinations and delusions.177 In the two year period between early 1997 and January 1999, Goldstein voluntarily
admitted himself to state hospitals no less than 13 times.178 On more than one occasion, Goldstein
requested long-term hospitalization at Creedmoor.179
Several months later, in January 1999, Andrew Goldstein pushed Kendra Webdale in front of an oncoming subway train. In Albany, former Attorney General Elliot Spitzer seized the opportunity to create a permanent outpatient commitment program in New York. In a statement to the press, Spitzer alluded to the problems associated with deinstitutionalization:
More often than not, he was turned down. Under tremendous pressure to cut costs and reduce the number of inpatients, the hospital could do little more than place Goldstein on a waiting list.
174 N.Y. MENTAL HYG.LAW § 41.55 (1993).
175 Michael Winerip, Bedlam on the Streets, N.Y.TIMES, May 23, 1999, at A6.
176Id.
177 NEW YORK STATE COMMISSION ON QUALITY OF CARE FOR THE MENTALLY DISABLED,IN THE MATTER OF
DAVID DIX :AREPORT BY THE NEW YORK STATE COMMISSION ON QUALITY OF CARE FOR THE MENTALLY DISABLED AND THE MENTAL HYGIENE MEDICAL REVIEW BOARD (1999).
178 Id.
68
It is clear that the law must be changed to protect both the public and the mentally ill from danger….The movement to deinstitutionalize has proven to be a double- edged sword. Most individuals can and do function well in society, but others with severe mental illness who are not taking their prescribed medication can be a serious threat to themselves and the public.180
Three months later Julio Perez, a homeless man suffering from paranoid schizophrenia, pushed Edgar Rivera into the path of an oncoming train, severing both of his legs.181 According to his
attorney, Perez harbored a delusional belief that a conspiratorial network of Mexican assassins was trying to kill him. Perez pushed Rivera, believing Rivera to be part of that network.182
In December 2012, after years of intermittent contact with mental health and law enforcement, Erika Mendez pushed Sunando Sen onto the tracks of a subway station in Queens.
183
In a tragic incident that shocked the world, Adam Lanza, a 20 year-old man believed to have Asperger’s Syndrome, shot and killed 26 elementary schoolchildren and their teachers in Newtown, Connecticut.184 In New York, public outrage, following the shooting in Newtown—as well as the
death of Sunando Sen—has lead a renewed interest in compulsory treatment.185
180 Press Release, Spitzer Proposes Mental Illness Legislation (Jan. 28, 1999) available at
http://www.ag.ny.gov/press-release/spitzer-proposes-mental-illness-legislation (last visited Oct. 1, 2012); see also Press
Release, Speaker Silver Joins Attorney General Spitzer in Calling for Passage of Kendra’s Law, available at
http://www.ag.ny.gov/press-release/speaker-silver-joins-attorney-general-spitzer-calling-passage-kendras-law (last visited Oct. 1, 2012); Eliot Spitzer, Is Kendra’s Law The Answer? Yes, 221 N.Y.L.J. 1 (1999).
181 Andrew Jacobs, Man Is Pushed in The Subway and Loses Legs, N.Y.TIMES, April 29, 1999, at A1.
182 Associated Press, Jury Finds Subway Pusher Guilty of Attempted Murder, N.Y.TIMES, October, 22, 2000, at A1.
183 Marc Santora & Anemona Hartocollis, Troubled Past for Suspect in Fatal Subway Push, N.Y.TIMES, December 31,
2012, at A.
184 David M. Halbfinger, A Gunman, Recalled as Intelligent and Shy, Who Left Few Footprints in Life, N.Y.TIMES,
December 14, 2012, at A18.
185See note 55 infra (in addition to strengthening state gun control laws, the 2013 NY Secure Ammunition and
Firearms Enforcement Act, SAFE, strengthens and extends Kendra’s Law); See also Sophia Hollander & Joseph De
69
II. KENDRA’S LAW
In addition to Kendra’s Law, thirty-six states and the District of Columbia have outpatient commitment laws.186
Kendra’s Law authorizes preventive outpatient commitment for people with mental illnesses who do not meet the criteria for inpatient civil commitment in New York. Under Kendra’s Law a court may order a person who is 18 or older to comply with an assisted outpatient treatment plan if the court finds by clear and convincing evidence that the subject of the treatment plan meets the following criteria. He or she must be suffering from a mental illness and “unlikely to survive safely in the community without supervision, based on a clinical determination.”
Kendra’s Law is only one of at least there are three types of outpatient commitment. The first, conditional release, applies to patients who have been hospitalized and
released on the condition that they comply with a treatment plan in the community. Outpatient commitment might also be used as a less restrictive alternative to hospitalization for patients who meet the criteria for inpatient commitment, but who can be treated safely in the community nonetheless. A third, and far more controversial form of commitment, preventive outpatient commitment, applies to individuals who do not yet meet the criteria for inpatient commitment, but who are expected to deteriorate substantially in the future.
187
186See ALA.CODE § 22-52-10.2 (1991); ARIZ.REV.STAT.ANN. §36-540(2011); ARK.CODE.ANN. §20-47-
214(b)(1)(2007); COLO.REV.STAT.ANN §27-65-111 (2010); DEL CODE.ANN. 16 §5010(2) (2011); D.C.CODE §21-
545(b)(2012); GA.CODE ANN. §37-3-81.1(2)(1991); HAW.REV.STAT. §334-121(1992); IDAHO CODE ANN. 66-339A
(1998); 405 ILL.COMP.STAT. §5/3-751(2011); IND.CODE §12-26-14-1(1993); IOWA CODE ANN. §229.13(2004); KAN.
STAT.ANN. §59-2967(2010); KY.REV.STAT.ANN. §202A.081(1)(1994); LA.REV.STAT.ANN. §28:55(E)(1)(2012); MICH.
COMP.LAWS §330.1468 (1996); MINN.STAT. §253B.065(5)(b)(2007); MISS CODE.ANN. §41-21-73(4)(2010); MO.REV. STAT. §632.330(2)(1996); MONT.CODE ANN. §53-21-127(2)(1996); NEB.REV.STAT. §71-909(2004); NY.MENTAL HYG. §9.60(c)(2010); N.C.GEN.STAT. § 122C-263(d)(1)(2009); N.D.CENT.CODE §25-03.1-20(1)(1977); OHIO REV.CODE
ANN.§5122.15(C)(2011);43(A)OKLA.STAT §5-415(E)(2010);OR.REV.STAT.§426.130(1)(b)(C)(ii)(2009); 50 PA.
STAT.ANN.§7304(1976);R.I.GEN LAWS §40.1-5-8(j)(1993); S.C.CODE ANN 1976 §44-17-580(2005); S.D. Laws 27A-9-
10.1 (2000); TEX.HEALTH &SAFETY CODE ANN. §574.034(b)(1997); UTAH CODE ANN. 1953 §62A-12-234(10)(2012);
VA.CODE ANN. §37.1-67.3(2009); WASH.REV.CODE §71.05.240 (2009); W.VA.CODE §27-1-9 (2010); WYO.STAT.
ANN.1977 §25-10-110(j)(2010).
The court must also
70
find that a history of treatment noncompliance has either: (i) been a significant factor leading to hospitalization at least twice within the last thirty-six months, or (ii) resulted in one or more acts of violent behavior toward self or others within the last forty-eight months, or at least a threat or attempt at serious physical harm to self or others within the last forty-eight months.188 In addition,
the petitioner must provide clear and convincing evidence that the subject of the petition is unlikely to participate in outpatient treatment voluntarily “as a result of his or her mental illness.”189 Assisted
outpatient treatment must be necessary to prevent a relapse or deterioration, “which would be likely to result in serious harm to the person or others.”190 Finally, the person must be likely to benefit
from treatment, and assisted outpatient treatment must be the least restrictive form of treatment available.191
In New York, involuntary hospitalization requires a finding that the subject of a petition for inpatient commitment presents “a substantial risk of physical harm” to self or others.
192
188Id. § 9.60 (c)(2)(4)(i) – (ii) (2006).
By contrast, Kendra’s Law permits outpatient commitment, largely on the ground that treatment noncompliance has lead to multiple hospitalizations and without outpatient commitment, the person is likely to decompensate, becoming a danger to himself or others. The result is that the subject of an AOT petition can be ordered to comply with treatment, even though at present, he or she does not present a substantial risk of physical harm to self or others. If the subject of the petition meets the
189Id. § 9.60 (c)(5)(2006).
190Id. § 9.60 (c)(5) – (6) (2006).
191Id. § 9.60 (c)(7) (2006); § 9.60 (h)(3) (2006).
71
criteria for AOT, the court may order assisted outpatient treatment for up to six months.193 Thirty
days prior to the expiration of an AOT order, the petitioner may seek continued assisted outpatient treatment for up to one year.194
Under Kendra’s Law, a court may order a person to self-administer psychotropic drugs, or accept the administration of such drugs by authorized personnel.195 However, like most outpatient
commitment statutes, Kendra’s Law does not authorize forced administration of medication over the patient’s objection. If a patient refuses to comply with any aspect of the AOT order, and a physician determines that the patient may be in need of involuntary hospitalization, patients may be removed from the community and detained in a hospital where they can be held for up to 72 hours to determine whether they meet the criteria for inpatient civil commitment.196