Testimony: Extending Kendra's Law

Statement Of Beth Haroules Before The Assembly Standing Committee On Mental Health, Mental Retardation And Developmental Disabilities And The Assembly Standing Committee On Codes regarding New York State's Assisted Outpatient Treatment (AOT) Program

Introduction Summary: Kendra's Law violates the fundamental freedoms of competent, non-dangerous persons with psychiatric disabilities who constitutionally could not be detained involuntarily in psychiatric facilities. Kendra's Law prescribes for them involuntary and highly restrictive treatment programs and often forces them to take medications against their will. And, the most disturbing information provided by the New York State Office of Mental Health in its mandated final report to the Legislature on "Kendra's Law," reveals major racial/ethnic and geographic disparities throughout New York State in the implementation of "Kendra's Law."

My name is Beth Haroules. I am a Staff Attorney at the New York Civil Liberties Union (NYCLU). The NYCLU is the New York affiliate of the American Civil Liberties Union and has long been devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights and in the New York State Constitution. Those rights include the rights of personal liberty and bodily integrity deeply implicated by this controversy. We thank you for the opportunity to testify before you this morning.

In 1999, with the adoption of "Kendra's Law," the New York State Legislature expanded the circumstance under which the State may compel persons with psychiatric disabilities to undergo treatment against his or her will or to participate involuntarily in mental health programs even if those individuals do not meet the criteria for involuntary hospitalization and/or medication.

The right of a person to determine his or her course of medical treatment has long been recognized as a fundamental right by the courts in this country. In Matter of Storer, 52 N.Y. 2d 363, 438 N.Y.S. 2d 256, 420 N.E. 2d 64 (Ct. App. 1981) the New York Court of Appeals recognized that a patient's right to choose his own medical treatment was superior to the doctor's obligation to provide care, even if the medical treatment was necessary to preserve the patient's life. And, in the seminal New York Court of Appeals' decision in Rivers v. Katz, 67 N.Y. 2d 483, 504 N.Y.S. 2d 74, 435 N.E. 2d 337 (1986), the Court stated that the modern trend in the legal and psychiatric fields is to give even those inpatients suffering from psychological disabilities an increasing amount of control over all of their treatment decisions -- including what medication regimes he or she follows, what therapy sessions he or she attends, and what other mental health programs he or she participates in.

Involuntary outpatient commitment orders under Mental Hygiene Law (MHL) §9.60 ("IOC" orders) typically involve judicial decrees that compel the administration of psychotropic drugs and require participation in other mental health services. These orders subject capable individuals to highly intrusive invasions of personal liberty and bodily integrity. According to the New York State Office of Mental Health, § 9.60 orders absolutely determine what medications a capable person takes; where a capable person receives therapy, spends much of the day (day treatment or rehabilitative programs) and lives (such as a community residence with a curfew and many rules); and whether a capable person submits to blood and urine testing. As of April 1, 2005, there have been 4,044 such intrusive orders entered statewide and, according to New York State Office of Mental Health,

  • 88% of those orders direct a medication regimen
  • 75% of those orders direct participation in individual and/or group therapy
  • 40% of those orders direct participation in substance abuse programs,
  • 37% of those orders direct participation in blood or urine testing,
  • 31% of those orders direct participation in specific housing or housing support services, and
  • 22% of those orders direct participation in specific day program services.

We respectfully submit that the New York State Office of Mental Health has submitted no evidence that the compulsion portion of "Kendra's Law" has served any purpose whatsoever. Indeed, the only benefit that the IOC order appears, at best, to confer on an individual, previously largely unserved, if served at all by the mental health system, is preferential access to scarce mental health resources. Thus, for example, 100% of IOC order recipients have received intensive case management services, 75% of IOC order recipients have received individual or group therapy, 22% of IOC order recipients have been able to access day programming services, 40% of IOC order recipients have been able to access substance abuse services, and 31% of IOC order recipients have been able to access housing and/or housing support services.

All research on court-ordered mental health treatment demonstrates that the two most salient factors in reducing recidivism and problematic behavior among people with severe mental illness is access to enhanced services and access to enhanced case management/monitoring services. One of the most comprehensive and best-designed studies of outpatient commitment was carried out at New York City's Bellevue Hospital.

See Steadman, H., Gounis, K., Dennis, D., Hopper, K., Swartz, M., & Robbins, P. (2001). Assessing the New York City Involuntary Outpatient Commitment Pilot Program. Psychiatric Services, 52(3), 330-336. The Bellevue study found that court orders did not lead to increased patient compliance with treatment; did not lead to lower rates of hospitalizations; did not lead to lower rates of arrest or violent acts committed; and did not lead to reduction in symptoms or increase in functioning. Providing higher quality services and taking extra care to coordinate them was demonstrated to reduce the frequency of hospitalization.

And, in reviewing, at the request of the California State Legislature, a variety of other empirical studies as well as the experiences of several states with involuntary outpatient commitment regimes, the Rand Corporation concluded that "the research on court-ordered mental health treatment suggests that the two most salient factors in reducing recidivism and problematic behavior among people with severe mental illness appear to be enhanced services and enhanced monitoring."

There are no empirical data that allow us to assess the policy tradeoffs between involuntary outpatient treatment and alternatives such as assertive community treatment. However, we believe the policy question can be explicitly reframed: "Does adding a court order to the provision of intensive treatment significantly improve outcomes over and above the intensive treatment itself?" and, if so, "Is the addition of such orders cost-effective?" Unfortunately, the existing empirical studies do not provide a definitive answer to these questions either … [but] the results of the second generation of research on outpatient commitment are consistent in supporting the need for intensive community-based services to prevent relapse, violent behavior, and criminal recidivism among people with severe mental illness. They are less consistent, however, in providing clear and convincing evidence concerning the importance of the court mandate per se … In conclusion, the research on court-ordered mental health treatment suggests that the two most salient factors in reducing recidivism and problematic behavior among people with severe mental illness appear to be enhanced services and enhanced monitoring

See M. Susan Ridgely, Randy Borum and John Petrila, The Effectiveness of Involuntary Outpatient Treatment, Rand Corporation, 2001, at pp. xix, 26-27, available here.

"Kendra's Law" ultimately poses a threat to the entire mental health system by removing patient trust. As patients become afraid of forced treatment they are less likely to seek treatment. And, ironically, treatment is also less likely to be available to those who voluntarily seek it. In a system in which treatment services are in short supply, the obligation to find services for those who are compelled to have them acts as a rationing device. There are already some areas in the State that are seeing critical shortages of intensive case managers because they are available only to people in outpatient commitment programs, and not to other people in the community who need them.

The most disturbing information, however, provided by the New York State Office of Mental Health in its mandated final report to the Legislature on "Kendra's Law," reveals major racial/ethnic and geographic disparities throughout New York State in the implementation of "Kendra's Law." What have we learned about the operation of the statute over the past four years ? We have learned that:

  • Black people are almost five times as likely as White people to be the receipients of IOC orders.
  • Hispanic people are two and a half times as likely as non-Hispanic White people to be the recipients of IOC orders.
  • People who live in New York City are more than four times as likely to be th recipients of IOC orders as people living in the rest of the state.
  • People with multiple psychiatric hospitalizations, but no histories of hurting others, are the primary recipients of IOC orders.
  • New York City leads the state in using a state law that disproportionately takes away the freedom of certain people of color who are mentally ill.

The NYCLU is very troubled by what appears to be significant racial, ethnic and geographic disparities in the implementation of New York State's involuntary outpatient commitment law and by the failure of New York State and New York City to explain these disparities. The New York State Office of Mental Health has characterized, with no further comment or explanation, the racial and ethnic composition of the recipients of IOC orders as "diverse." According, to the New York State Office of Mental Health,

  • 42% of IOC order recipients are Black,
  • 34% of IOC order recipients are White, and
  • 21% are Hispanic.

    But, when compared with a similar population of mental health service recipients, the percentage of IOC order recipients who are men of color is disproportionate to the percentage of men of color whom the State has characterized as suffering from severe and persistent mental illness. Geographically, IOC orders are sought and imposed in a particularly skewed fashion across the state. As of April 1, 2005, New York City, Nassau and Suffolk Counties on Long Island and Erie County represented the locations where the majority of orders have been entered. Yet, the New York State Office of Mental Health has afforded no explanation as to why there is such stark geographic disparity in the application of "Kendra's Law."

    • New York City (5 counties or boroughs) 3,078 orders,
    • Nassau County 165 orders,
    • Suffolk County 254 orders,
    • 41 other counties combined 547, and
    • 14 counties have entered no orders.

    The statute, by its terms, expires on June 30, 2005. We submit that there are substantive issues concerning the implementation of "Kendra's Law." We urge the Legislature to ascertain precisely why there appears to have been such divergent racial, ethnic and geographic disparities in the implementation of "Kendra's Law." We hope, and expect, that in deliberating upon "Kendra's Law," the Legislature will strike a more appropriate balance between the interests of the state and the interests of the individual. And we urge the Legislature to examine a variety of alternative approaches to the compelled psychiatric treatment imposed on individuals under "Kendra's Law." For example, in 1999, Senator Libous proposed funding a statewide education and outreach program concerning the use of advanced directives and health care proxies by those persons with psychiatric disabilities. Assemblyman Brennan proposed enhancing coordination of existing and new services designed to engage a small group of individuals with psychiatric disabilities who have higher needs for supports and services than the general population of individuals suffering from psychiatric disabilities.

    Kendra's Law violates the fundamental freedoms of competent, non-dangerous persons with psychiatric disabilities who constitutionally could not be detained involuntarily in psychiatric facilities. Kendra's Law keeps these persons under the control of the State after they have been released. It prescribes for them involuntary and highly restrictive treatment programs and could force them to take medications against their will. Because the two most salient factors in reducing recidivism and problematic behavior among people with severe mental illness are enhanced services and enhanced monitoring, we strongly urge the Legislature to abandon the costly administrative mechanism that drives the geographic disparity and racial and socioeconomic biases evident in the implementation of "Kendra's Law" and devote those resources to affording New York State's citizens with severe mental illness access to the full range of appropriate enhanced psychiatric services.