The Mythology behind “Assisted Outpatient Treatment”

Michael Recco, J.D., Dennis Feld, J.D., and Arthur Baer

Perhaps the most widely accepted myth behind "Assisted Outpatient Treatment" (AOT), which insulates state laws authorizing mandatory outpatient commitment from uniform criticism on due process and equal protection grounds, is that AOT “does not involve confinement and the attendant loss of liberty.” Ironically, the absence of involuntary confinement at the heart of all AOT laws can result in individuals living in the community having fewer due process protections than those confined in State hospitals, and courts justify this paradox under the convenient fiction that a mentally ill person allowed to live in the community is a more dangerous by virtue of her emancipation than the inpatient who is now confined in a locked, inpatient unit away from society. This eviscerates the parens patriae rationale for AOT, allowing the state greater leeway to act on the basis of its police powers in ways that are more punitive than benign attempts at treatment intervention.

Outline:

Involuntary outpatient commitment laws, laws which permit courts to intervene and order people with mental illness to comply with treatment in the community. Preventative outpatient commitment laws—a subtype of involuntary outpatient commitment—permits court-ordered treatment for people with mental illnesses who do not satisfy the criteria for inpatient commitment. These laws have different requirements on a state-by-state basis, but uniformly rest upon erroneous assumptions about the dangerousness of individuals living with mental illness and capacity of such individuals to simply exist in the community without state-mandated treatment and oversight. This workshop will challenge the legal and philosophical myths supporting preventative outpatient commitment, and will use New York State’s Assisted Outpatient Treatment law, also known as Kendra’s Law, as well as the preeminent New York State decision upholding this law, as examples illustrating how these laws inappropriately subvert individuals’ fundamental rights while simultaneously impeding individuals’ ability to autonomously participate in their own recovery and lead more productive and satisfying lives.

Part 1 of the presentation will focus on the nature of preventative outpatient commitment and common arguments supporting and opposing these laws by advocates, clinicians, and attorneys, with specific attention to the constitutional bases and legal constructs attending such laws. Arguments against outpatient commitment that are particularly problematic and “mythic” in character include:

• A prediction that an individual may become violent at an indefinite time in the future;
• Supposed “lack of insight” on the part of the individual, which is often no more than a disagreement with treating professionals;
• The potential for deterioration in the individual’s condition or mental status without treatment;
• An assessment that the individual is “gravely disabled” or unable to survive in the community without treatment provided in an AOT order.

Part 2 will examine how arguments for or against preventative outpatient commitment were received and treated by the New York State Legislature when it passed Kendra’s Law, New York’s version of outpatient civil commitment. This section will highlight key provisions of the law as they pertain to due process protections available to individuals’ subject to Kendra’s Law and will explain the mechanics of how assisted outpatient orders are issued. This section will particularly focus on the circumstances precipitating the passage of Kendra’s Law and how the Legislative findings, while paying lip service to conceptions of due process and equal treatment of individuals living with mental illness, and purportedly limiting the scope of the law’s application to a concrete subset of individuals specifically shown to be dangerous in the face of noncompliance with treatment, in fact furthers stereotypical assumptions correlating dangerousness with the presence of mental illness and unduly relies upon this correlation to justify unequal treatment of individuals with a history of mental health treatment, including the evisceration of basic due process protections such as notice and an opportunity to be heard before individuals subject to an order may be forcibly removed from their homes and transported to mental health facilities to undergo evaluation for potential involuntary commitment. This section will highlight how the law purports to operate within acceptable constitutional boundaries through the use of remedial language, under the guise of facilitating treatment and enabling individuals to live in the community.

The reality of the situation is that the state, while trying to justify preventative outpatient commitment dually under the parens patriae (in the form of providing necessary treatment to allow individuals to live in the community where such individuals would not be able to care for themselves in the absence of such treatment and would deteriorate to a point requiring involuntary hospitalization) and police power (providing mechanism of state oversight of individuals deemed to be dangerous in the absence of treatment towards self or others based upon incidents of such behavior) has created a statutory scheme which pragmatically functions almost exclusively within the ambit of the latter power. The resulting situation is one where individuals living with mental illness, who are neither a danger to themselves nor others, living in the community are treated like recidivist criminals on probation, and will comply with the terms of AOT orders in many instances for reasons wholly unrelated to their individual recovery, such as fear of being sent to a mental institution for involuntary hospitalization.

The fact Kendra’s Law does not require a finding of incapacity as a predicate condition to the issuance of an AOT order is constitutionally suspect insofar as the court’s power—or anyone else’s—to require nondangerous individuals to accept medication. As discussed infra, the Court of Appeals reliance on this factor propagates the legal fiction that individuals subject to AOT orders comply with such orders voluntarily. Individuals subject to AOT orders are thus stuck in the unenviable position of having, in strictly formalistic terms, the legal capacity to refuse medication under an AOT order, but the inability to have their refusal honored. At least three critical judicial findings necessarily included in any AOT order undermine such refusals: (1) a finding which can be interpreted as equating refusal of medication with symptoms of mental illness (“the patient is, as a result of his or her mental illness, unlikely to voluntarily participate in the recommended treatment pursuant to the treatment plan”); (2) a finding that without the medication is necessary to prevent a relapse or deterioration that is likely to result in serious harm to the individual or others (MHL § 9.60(c)(6)); and (3) a finding that the it is likely that the medication will benefit the individual. The fact that the law requires a formal petition to the issuing court to remove “major” category of treatment from an AOT order, such as the removal or change of the medication required by the order, creates an additional financial and logistical obstacle to individual efforts to “participate” in their own recovery. Moreover, always looming in the background is the very real and immediate threat that a social worker, care giver, nurse administrator, friend, family member, or “interested” person will construe the individual’s failure to comply with “treatment,” including failure to attend therapy sessions or disagreement about how he spends his money, as indicative of the all-too-ever-present relapse or deterioration into the person’s past dangerous thinking or behavior. The impressions or reports from these individuals can quickly serve as the basis for a pick-up order for potential involuntary hospitalization and the prospect of a cadre of police or sheriff officers with tasers drawn coming to your door and treating you like you are public enemy number one.

Part 3 will examine how the New York State Court of Appeals overlooked the problems identified, supra, and, at best, discounted the far-reaching and invasive consequences of state intervention into the lives of non-dangerous individuals living with mental illness in community settings. This section will explore errors of the Court’s reasoning in relation to the constitutional concerns raised by the appellants in this case, and explain how these issues are not unique to New York. (This section ties in with Legal Advocacy and Learning Goals with regard to expounding upon how the problematic treatment of these issues by Court of Appeals continues today.)

Part 4 will provide practical insights for attorney on how to litigate AOT cases from an attorney’s perspective, including tips and strategies for negotiating less-restrictive outcomes for clients and ways to persuade the Court to see individuals with mental illness as human beings deserving of full protection under the law and treatment as individuals striving to live independently in spite of their disabilities, as opposed to recidivist lunatics bereft of moral agency. (This section will dovetails with the Legal Advocacy and Strategies and Learning Goals.)

ADDITIONAL THOUGHTS on PART 3 – Court of Appeals:

In In re K.L.,1 NYS3d 362 (2004), the Court of Appeals set forth the constitutional boundaries of governmental authority to compel outpatient commitment without passing judgment on the wisdom of these laws or the moral claims that citizens might have under outpatient commitment orders. The Court of Appeals’ interpretation of the seemingly benign purpose of the law and its constitutional justifications highlight the internal contradictions and unworkable paradigm envisioned by the Legislature.

For example, New York’s highest court upheld the constitutionality of outpatient commitment, in significant part, based upon the formalistic justification that because the law did not explicitly require a finding of incapacity, that compliance with court-ordered medication and other treatment can operate within a sphere of voluntariness and respect for an individual’s fundamental right to refuse medication. The court orders requiring such individuals to participate in treatment on an outpatient basis under the legal fiction that such individuals’ can and will have a voice in “actively participating” in the development of their written treatment plans, and must be afforded an opportunity to do so under the provisions of the law. See In re K.L., 1 NY3d 362, 369 (2004). Courts interpret this effect as pragmatic and benevolent under the reasoning that a large number of patients would not be eligible for court-ordered assisted outpatient treatment were a finding of incapacity required for such orders. Id. at 369. Yet, the reality of the situation undermines the premise that if one was capable of making a rational treatment decision, his or her refusal will be the benchmark that justifies the cherished notions of liberty and personal autonomy and makes an individual, even one suffering from a mental illness, immune from mind-altering drugs that the pharmaceutical warehouses/ industries wish to sell and institutional psychiatrists wish to prescribe. Thus, in New York, as in many jurisdictions, AOT is utilized as a stepdown program from involuntary hospitalization, and the individuals subject to such orders have little choice or clout to “actively” participate in the development of their outpatient treatment program, which invariably requires mandatory participation in case services and medication compliance.

Workshop Goals:

• Challenge normative assumptions, or “myths,” that AOT is, by virtue of nonconfinement in a hospital setting, necessarily less restrictive to individual liberties than hospitalization;
• Explore how AOT laws inappropriately restrict individuals’ autonomy in the name of public safety while frustrating such individuals’ ability to live independently and participate in their own recovery in community settings;
• Reveal how myths surrounding AOT are codified within New York State’s AOT law and examine how they were effectively adopted by New York’s highest state court when it held the law constitutional;
• Provide insights and strategies for attorneys and advocates on how to negotiate outcomes and protect individuals’ rights at AOT proceedings and under AOT orders based upon the presenters’ experience as advocates and attorneys;
• Encourage discussion and collaboration among attendees regarding advocacy strategies for AOT recipients.