Legislative Memo: Kendra’s Law Bills to Curtail Individual Liberty Unconstitutional

Speaker Silver (A.8477) and Governor Pataki seek to unconstitutionally expand 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 existing criteria for involuntary hospitalization and/or medication.

Introduction

New York’s Mental Hygiene Law currently provides that in order for a person to be admitted to a psychiatric facility against his will, a determination must be made by two physicians that the person has a mental illness which is “likely to result in serious harm to himself or others.”

(S9.37 and S.939) The law also requires that a court make a determination that the person is in need of involuntary care and treatment, which by definition of the law means that the person’s “…judgment is so impaired that he is unable to understand the need for such care and treatment.” (S.9.31 and S.9.01). If a psychiatric facility patient no longer meets those criteria, and is determined to be both nondangerous and capable of making his own treatment decisions, the person must be released from the psychiatric facility.

(S9.35) 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.

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 (Ct. App. 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.

Moreover, the criteria contained in these bills for determining involuntary outpatient status eliminates the requirement that the person constitute a danger to him/herself or to others, and the requirement that the person cannot make decisions for him/herself but, rather, substitutes a “predicted deterioration standard.” (S.9.61(c)).

This standard deviates substantially from the existing relatively rigorous standard employed when the State attempts to exercise control over a person with psychiatric disabilities, substituting a standard that is so broad and undefined as to be effectively meaningless.

The NYCLU opposes these bills both because the bills violate the right of a person to determine his or her course of medical treatment and because the criteria contained in these bills for determining involuntary outpatient status eliminates the requirement that the person constitute a danger to him/herself or to others, and the requirement that the person cannot make decisions for him/herself.

Proposed Legislation

Under this proposed legislation, persons that the state may no longer lawfully keep in psychiatric facilities would only be technically released from an institutional setting. Under the provisions of the bills, any person who had been hospitalized in a 36-month period and who has a “history” of failure to adhere to a treatment regime could result in reinstitutionalization. That person would not have any freedom to decide his or her own medical treatment, and he or she would not be free to conduct his or her live as he or she chooses.

These bills could force such individuals to follow treatment programs prescribed by doctors which might include medication; individual or group therapy sessions; day or partial day programming activities; education and vocational training; supervision of living arrangement; alcohol or substance abuse treatment and counseling. (S9.60(a)(1)).

If the outpatients do not comply with the terms of the treatment, they can be taken by peace officers to a psychiatric facility for observation and evaluated by a physician. At this time they could also be readmitted to the psychiatric facility. (S9.60(n)).

This is a further violation of a person’s liberty interests. The United States Supreme Court has determined that “a State cannot confine, without more, a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” O’Connor v. Donaldson, 422 U.S. 563, 576 (1975).

And under the Mental Hygiene Law, New York State cannot constitutionally keep nondangerous persons with psychiatric disabilities confined as inpatients in psychiatric facilities. In O’Connor, the Supreme Court wrote, “May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? …Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s liberty interest.” Ibid, p. 575.

The Court decided that in order for the State to justify a deprivation of a person’s liberty interest, there must be a compelling state interest involved. The person must be dangerous either to himself or others. There is no legitimate State interest which necessitates this control over an individual.

They are not harmful to themselves or others, and therefore there is no compelling public health or safety concern which would give the state a reason for intervention. The released persons may behave in a way that makes people uncomfortable, but they are not a health or safety hazard. They do not need the State to step in and determine their care. They have the constitutional right to choose or refuse treatment. 

Mandatory Drug Treatment

Furthermore, to the extent that Governor Pataki’s bill provides for involuntary administration of psychotropic medication, the NYCLU opposes the involuntary drug treatment provisions of this bill. Proposed S9.61(c)(2) gives the courts and the psychiatric facility the power to force an individual under an outpatient commitment order to take psychotropic medication if the patient is found to be incapable of making a treatment decision on his own.

Note that the “dangerousness” element required by Rivers v. Katz is missing; hence, even non-dangerous persons who had been released from the psychiatric facility could potentially undergo forced drug therapy under this bill.

Conclusion

These bills violate the fundamental freedoms of competent, nondangerous persons with psychiatric disabilities who constitutionally must be released from psychiatric facilities. The bill proposes to keep these persons under the control of the State after they have been released.

It would prescribe for them involuntary and highly restrictive treatment programs and could force them to take medications against their will. The NYCLU strongly opposes this denial of liberty. The NYCLU does support a number of alternatives currently under review by the Legislature. For example, Sen. Libous has proposed to fund a statewide education and outreach program concerning the use of advanced directives and health care proxies by those persons with psychiatric disabilities.

The NYCLU also supports Assemblyman Brennan’s proposal to enhance 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.