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,
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:
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."
- 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.
|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|
- 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.
- 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.