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Court-ordered community treatment
The merits of state statutes such as Kendra's Law deserve renewed debate

The National Law Journal
February 8, 2010

he mid-20th century witnessed the deinstitutionalization movement. Spurred by toxic conditions in psychiatric hospitals and the development of anti- psychotic drugs that would permit residents to function outside their walls, these establishments began to shut their doors in droves. Community treatment, recognized as superior in theory, often failed to deliver in fact. Not only was it chronically underfunded, but also the mentally disabled often refused to utilize such services as did exist. Without monitoring, many individuals who needed medication to live more or less normally stopped taking it because they did not believe they were sick (or to avoid its side effects). As a result, a "revolving door" pattern developed: People would go "off their meds," decompensate, be hospitalized and resume medication, briefly improve, then be released and repeat the cycle.

Against this backdrop, a series of attacks involving mentally ill assailants provided the direct impetus in several states for passage of so-called assisted outpatient treatment (AOT) statutes; 43 jurisdictions have them. These permit court-ordered therapy in the community, including psychotropic drugs, for individuals meeting the statutory criteria who are not voluntarily receiving services. The best known is the eponymous "Kendra's Law," N.Y. Mental Hyg. Law § 9.60, enacted in 1999 in the wake of the death of Kendra Webdale, whom a recently discharged mental patient pushed off a subway platform. It is slated to sunset in June. The debate between supporters and opponents will furnish an occasion to review the merits of not just this law but also AOT in general.

State incursions on the freedom of the mentally ill must rest on either its police or parens patriae powers. The former justifies intervention when a person presents a danger to himself or society; the latter, when one in need of care lacks decisional capacity. Forcible drugging especially has to meet a very high standard to be constitutional: Medication must be the least restrictive alternative, medically appropriate and essential for safety. Riggins v. Nevada, 504 U.S. 127 (1992).

Kendra's Law and others like it contain a laundry list of criteria. But in essence they extend to mentally disabled individuals who have a history of lack of compliance with treatment that has led to either hospitalization or acts or threats of serious violence, and who require AOT "in order to prevent a relapse or deterioration which would be likely to result in serious harm to the person or others." The New York statute typically provides for various protections including a hearing at which the subject has the right to counsel, to findings based upon clear and convincing evidence and to a written treatment plan. However, if he fails to comply with a court directive, he may be arrested and held at a hospital for 72 hours to determine whether he should be involuntarily committed under the stricter rules applicable in that context (e.g., the necessity of proving mental incompetence).

"Assisted" outpatient treatment is thus a euphemism for coerced outpatient treatment. Although Kendra's Law does not require a determination of incapacity or present or imminent dangerousness, the New York Court of Appeals has sustained it against constitutional challenges. In re K.L., 774 N.Y.S.2d 472 (2004). Its holding on the compulsory-medication issue relied on the arguably tenuous distinction between the physically compelled administration of drugs involved in Riggins and the purely legal compulsion allowed by the statute.

Since the U.S. Supreme Court has never ruled on the validity of this type of law, debates about AOT center on policy considerations. Advocates stress the tragic, ironic consequences of permitting the mentally sick to torpedo their own best interests in the name of dignity and freedom. For instance, in a letter to the editor about her "talented" psychotic brother, whose rejection of medication has kept him "homeless, jobless and delusional," one woman wrote that "this isn't the life he would have chosen for himself; it was chosen for him by his untreated illness." Wall St. J., Feb. 22, 2006. Other proponents cite studies indicating that persons in AOT have shown improved outcomes in areas such as arrests, homelessness and psychiatric hospitalizations. Opponents contend that these results are due to the increased services diverted to AOT targets from other, equally needy populations, not to coercion. Moreover, they claim, AOT differentially affects minorities, deepens the stigma of mental disability and unjustifiably expands state power.

If history furnishes any guidance, Kendra's Law will be extended (as it was in 2005) and similar laws will survive attack. Is that desirable? To this civil libertarian, who has had experience with the mentally ill, the answer remains far from clear.