Round Up the Usual Suspects: The Use of Involuntary Outpatient Treatment to “Fight Crime” and the Rights of Patients To Challenge such Treatment

Dennis B. Feld, J.D., and Arthur A. Baer, J.D.

I. Background
Persons in institutional settings are regularly subject to efforts to compel treatment over objection in derogation of their liberty. Such compelled treatment includes forced drugging, forced electroshock, and at times, compelled major medical procedures over objection. Now coerced treatment in community settings is being expanded, instead of addressing the social causes of homelessness and recent crime waves, proposed legislation is targeting individuals with perceived mental disabilities, and weakening the standards for imposing, and expanding the reach of coerced outpatient treatment, portending the use of coerced outpatient treatment to sweep the streets through emergency provisions and imposing a regimen of coerced outpatient treatment or inpatient confinement.

II. Objectives
This workshop will explore the constitutional rights of individuals facing coerced outpatient treatment, revisit the legal fictions that are the basis of outpatient treatment, and what legal arguments might be made, and what may be done to address the expanded use of state emergency state powers, and lowered thresholds for imposing coerced outpatient treatment. We will explore these issues, relying on past cases as a baseline to measure the import of these laws.

New proposals may expand the circumstances for the imposing coerced outpatient commitment, by eliminating a requirement for past non-compliance with treatment and resulting deterioration, and by defining harm as failing to accept offers of medical care, food, “shelter” and clothing. We will be exploring legal advocacy, including possible legal challenges to such proposed regimens of coerced outpatient treatment.

Among the areas we will cover are:

III. Legal and Advocacy Strategies

A, Demonstrating the Fundamental Right to Object to Treatment Decisions as the Baseline for Determinations for Treatment Over Objection

B. Challenging claims of mental illness and lack of judgment to make treatment decisions.

  1. The continuum for viewing treatment determinations.
  2. How disagreements with treatment providers are not synonymous with incapacity.
  3. How collateral perceptions are distinct from those in deciding a particular treatment.

C. Challenging involuntary outpatient commitment.

  1. Challenging probable cause of warrantless arrests
  2. What alternatives were considered and tried; which were not and why not?
  3. Coercion and its undermining effect on the treating relationship
  4. Challenging proposed treatment as medically inappropriate
  5. Challenging length of orders
  6. Informed consent as a baseline for sufficiency of evidence.

D. Obtaining and Using Experts to Controvert the Testimony of Treatment providers

IV. Learning Goals:
A. Developing Effective Legal Strategies - Understanding the Possibilities for Use of New Legal Approaches
B. Developing Effective Advocacy Strategies - Understanding the Possibilities for Use of New Advocacy Strategies
C. Brainstorming to Begin to Develop An Outline of Long Term Strategies to Confront Involuntary Treatment Orders

NYC: On City Streets, Fear and Hope as Mayor Pushes to Remove Mentally Ill (New York Times, 12/1/22)