National Association for Rights Protection and Advocacy


(PART 1)

By Dennis B. Feld and Kim L. Darrow

New York State’s involuntary outpatient commitment ("IOC") statute, also known as "Kendra’s Law" and "assisted outpatient treatment" ("AOT"), went into effect in November, 1999. While initially there were few applications, in recent months the number of petitions has increased considerably, especially in New York City.

The legal challenge thus far taken to that statute falls short of directly confronting the concept of forced treatment. That battle, once waged against the inpatient laws of New York in the late seventies and early eighties, has been unsuccessful in the courts and has served as a yellow light of caution with respect to repeating such an effort now against outpatient commitment. Of course, the problem that results from moving away from such a basic and central attack is that it becomes uncertain how to protect the rights of those individuals who are subject to IOC and the mandates it places on their choices and their lives. Essentially the result has been a posture of wait and see what the AOT petitions look like, what treatment services will be sought, how the courts will respond, and how ultimately the individuals subject to these applications will respond given the promise of enhanced services, albeit delivered through the compulsion of a court order.

Ironically, the first challenge to "Kendra’s Law" which resulted in a reported decision did not deal with the protection of rights for individuals subject to IOC but focused on the financial costs and responsibilities of the parties charged with delivering and facilitating these enhanced services. In Matter of Application of Arden Hill Hospital v. Daniel W.1 the county objected to bearing either the direct or indirect costs of providing treatment services to the soon-to-be outpatient otherwise forced to accept those services. The county objected to paying for those costs although the Director of Community Services for each county is designated in the statute as responsible for ensuring that the ordered treatment services are in place and implemented. Instead, the county proposed that either the petitioner, in this case the hospital in which the subject of the petition was then currently confined, or the respondent, the subject himself, pay for the services. Orange County Supreme Court ruled that the county must pay and the county has appealed; the case now is pending in the appellate court. To the extent that placing the financial burden on the individual judicially mandated to be the recipient of IOC services would add insult to injury, the appeal has taken on a patient’s right aspect and Mental Hygiene Legal Service ("MHLS") which represented Daniel W. at the trial level, will aggressively approach the appeal from such a perspective and not be neutral simply because money and not liberty seems to be at stake in this litigation.

The idea that treatment forced upon an individual living in the community is more onerous than such treatment administered to a psychiatric inpatient was a concept discussed by the group of New York State legal advocates who informally aligned themselves to discuss legal strategies to deal with "Kendra’s Law" (those discussions first gained momentum at last November’s NARPA conference). Yet, given the wording of the statute which seems nearly to equate the standard for outpatient commitment with that for inpatient confinement, forced treatment on the outside appeared to many to be a less onerous situation for the individual than actual physical confinement. Further, the New York State Office of Mental Health had made both verbal and written representations that "Kendra’s Law" was not about holding an individual down in his or her home or apartment and injecting the individual in front of family, friends and neighbors with a needle full of potent psychotropic drugs. With these factors in mind, the coalition of legal advocates approached the attack on IOC in a more reflective manner and weighed the comparative harms between those people subject to New York State’s civil commitment scheme and those who would be allowed to live in the community but with the yoke of a treatment plan ordered by State Supreme Court. A complication that emerged almost as soon as the first petitions began to be filed was that many hospital authorities displayed reluctance to discharge patients without IOC orders in place.

The decision reached and endorsed by the majority of the legal advocates was to commit to an approach which would ensure that those individuals subject to forced treatment in the community had at least the same due process rights as those person’s confined as inpatients. Thus, those aspects of "Kendra’s Law" which actually afforded outpatients less rights than inpatients would be challenged. With MHLS in New York State’s Second Judicial Department taking the lead, given its statutory role as assigned counsel under "Kendra’s Law", challenge was brought to two AOT applications involving clients who had previously been under IOC orders as part of the predecessor IOC pilot project at Bellevue Hospital in New York City and who had assented to the treatment ordered but desired to accept services on a voluntary basis as opposed to under compulsion. These two clients, Jonathan S. and James D., were willing to continue to be offered enhanced services but had disagreements with some parts of the treatment plans as previously ordered and now being contemplated. These individuals clearly presented as persons capable of making their own medical decisions and making reasoned choices among the proposed treatment modalities and possible alternatives.

What was conspicuously missing in the applications for "Assisted Outpatient Treatment" were any allegations that Jonathan S. and James D. lacked the ability to make such reasoned treatment decisions so as to justify taking away their freedom to choose what services they found acceptable and instead be coerced to accept all the services and medications proposed by the outpatient clinicians. Certainly, coercion was at the heart of the matter, as both Jonathan S. and James D. were well aware that, under the IOC law, if the treatments proposed were actually ordered and they refused or were perceived as refusing these services, they would be subject to a quick and unpleasant trip to a psychiatric emergency room for up to 72 hours and a subsequent involuntary admission to an inpatient unit. Yet despite what appeared to be a clear understanding by both individuals of the relative benefits and risks of the proposed treatment as well as the statutory consequence for refusal, the only allegation that the respective applications spoke to regarding the subject of reasoned and informed choice was that mental illness prevented Jonathan S. and James D. from accepting the proposed treatment. Indeed, the IOC statute does not require proof that the person lacks decision making capacity but the statute rather focuses on the refusal of prescribed treatment requiring only that the refusal must be somehow based on an alleged mental illness. Kendra’s Law does not provide for an inquiry into the reasons for such refusal.

Thus, there was a distinct difference between the protections constitutionally guaranteed to inpatients and those afforded outpatients under New York’s IOC statute. Pursuant to the seminal 1986 ruling of New York’.2 Yet, an individual subject to New York’s IOC law could be forced to choose between accepting the court ordered treatment or being taken into custody by a police or peace officer and transported to a psychiatric emergency room without even an allegation let alone a judicial determination that he or she lacked the ability to make a rationale treatment decision.

The New York City Commissioner of Mental Health, Mental Retardation and Alcoholism Services as well as the State represented by the Attorney General’s office, tried to justify this disparity by minimizing the consequences of treatment refusal. The City and State argued that as long as the statute spared recipients from being wrestled to the ground and injected with drugs, then an IOC order did not seriously affect a person’s liberty, and thus there was no need for IOC petitioners to carry a burden of showing that the person subject to such petitions was incapable of making a valid choice. Neither the City nor the State were bothered that the price of refusal might be that a person, for doing no more than refusing potent drugs, would be placed in police custody and hurried away in front of family and friends to a psychiatric unit.

Apparently, out of concern that a ruling favorable to consumers/survivors on this issue would narrow rather than widen the net to mandate the treatment of the "recalcitrant mentally ill", both NAMI for New York State and the Treatment Advocacy Center ("TAC") rushed to the fore and tried to intervene in these two cases aligning with the City and the State. Although actual intervention as parties to the proceeding was denied by the Supreme Court sitting in Brooklyn, NAMI and TAC were given permission to put in a "Friend of the Court" brief. In this document, NAMI and TAC seek to justify the disparate treatment between inpatients and outpatients resulting from the statutory scheme of "Kendra’s Law" by painting a frightening picture of the mentally ill who dare to refuse drugs and other psychiatric prescriptions and yet have the opportunity to live in the community among those not deemed brain disordered. NAMI and TAC proclaim in their brief that "Kendra’s Law" responds to the few but extremely violent mentally ill who lack the good judgment to fully follow prescribed regimens of psychiatric interventions. Thus labeling these people, who in their opinion rightfully belong under IOC orders, as the most dangerous in today’s society, NAMI and TAC claim that it is only necessary to show non-compliance instead of having to show an inability to rationally make treatment decisions. For NAMI and TAC, only non-compliance needs to be shown when it comes to those mentally ill individuals who dare to live in the community and exercise the right to choose. Informed refusal would be recognized by NAMI and TAC only if exercised by those mentally ill individuals confined to the asylum.

It was in response to the rattlings of NAMI and TAC that the loosely organized coalition of P & A attorneys in New York State, concerned private practioners, and civil rights attorneys put together a unified front with MHLS, as the attorney of record for Jonathan S. and James D., and spoke to the serious consequences, if not evils, flowing from Kendra’s Law. Submitting an amicus brief on behalf of ten professional/consumer/legal rights organizations, counsel from four of these organizations highlighted the coercive nature of New York State’s IOC statute and, although not arguing its total invalidity, argued that its toll on human liberty was certainly significant enough to require protections for those to whom it is applied as great as are afforded inpatients under Rivers v. Katz. Although veering away from any polemic against forced drugging and other means of involuntary psychiatric control, the amicus brief lauds the virtues of reasoned refusal and the right to act in accordance with one’s own medical choices. It supports its position by legal analysis as well as clinical literature. Hence, while the brief does not do battle with psychiatric oppression as it now exists in the community, it nevertheless speaks eloquently of the cruel choices forced on people with psychiatric histories, and it requests that the court, given the statute’s failure to incorporate the criterion of capacity into its scheme, find New York’s IOC statute unconstitutional.

While awaiting the judicial outcome of the Jonathan S. and James D. cases, a narrower but effective attack was brought by MHLS looking to the very language of the statute as the basis for challenging the numerous individual petitions now being generated. In New York City’s effort to demonstrate how serious it views outpatient commitment and the need to protect the community from the mentally ill homeless consigned to its hospitals, shelters and jails who might eventually be set free, clinicians and administrators on behalf of the City’s Commissioner began to "knock out" those IOC petitions with little care to validate a genuine need of the person to receive enhanced services via a court order. Upon a bare showing of two prior psychiatric hospitalizations in the past 36 months or the vaguest allegation of a serious violent act, attempt or threat being made in the past 48 months-information likely derived from a computer print out or a family member’s accusations-together with an allegation of non-compliance, an IOC application is generated seeking to subject the unfortunate citizen to an initial six month order mandating forced outpatient drugging and other psychiatric interventions. Repeating verbatim the same formulaic recitation derived from the statute, as many as 6 to 10 of these applications are spit out by New York City per day.

As draconian as New York’s IOC statute is, it nevertheless was drafted to require that applications brought pursuant to it be grounded in a factual showing rather than a bare recital of the statutory criteria. Yet, for the most part it is the latter type of conclusory statements that are at the core of most IOC applications, and facts descriptive of concrete alleged violent incidents or even the dates when such were alleged to occur are missing. Regardless of whether the application speaks to past hospitalizations or prior violent behavior, there are simply no facts pleaded that clearly establish or even attempt to show the statutorily required connection between alleged non-compliance and past behavior or psychiatric admissions.

In one application brought in the State Supreme Court in Queens County, the petition, executed by the Director of Psychiatric Services for a New York City-run hospital, was totally worded in the language of the statute without even giving a date let alone other significant information as to when the alleged "serious violent behavior" in the past 48 months was supposed to have occurred. Those missing facts were not supplied by the requisite supporting affirmation of the examining physician. The physician did speak, in general terms, of dangerous behavior, but attributed it not to non-compliance, but to homelessness. As MHLS pointed out in its motion to dismiss, homelessness is neither a mental illness nor evidence of a failure to comply with treatment.

The "broad, simple allegations" in the petition and the physician’s affirmation were found to violate any notion of due process of law which would give the IOC subject and his or her counsel a meaningful opportunity to defend against the petition. The court, holding the very IOC statute up to the petitioner, further ruled that the director failed to follow the dictates of that law. This well-reasoned and sharply worded decision now serves as an effective bench mark against which to measure other IOC petitions, and hopefully will slow down the City’s race to produce the highest numbers of people in the State subject to IOC orders.

Other challenges have been and continue to be brought by MHLS, and will be discussed in Part II of this article.


1  701 NYS2d 770 (Sup. Ct., Orange Cty. 1999)

2  pp. 1986 (basing the ruling on both New York common law and the due process clause of the state constitution).

Return to Tenet On-Line

Return to NARPA Home Page, Table of Contents