Statement on Kendra's Law

My name is Norman Siegel. I am the Executive Director of the New York Civil Liberties Union (NYCLU). The NYCLU is the New York affiliate of the American Civil Liberties Union. The NYCLU has long been devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights. In the forefront of those efforts has been our defense of the rights of persons with neurobiological disorders under the Federal and New York State Constitutions. The NYCLU is strongly opposed to "Kendra's Law." This law unconstitutionally expands the circumstance under which the State may compel persons with neurobiological disorders 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. 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." 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 "...judgement is so impaired that he is unable to understand the need for such care and treatment." When 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. 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. Yet, the criteria contained in "Kendra's Law" 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 and substitutes a "predicted deterioration standard." 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. Under "Kendra's Law," 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 this law, 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. The law could force such individuals to follow treatment programs prescribed by doctors which might include medication; periodic blood and urine testing to determine medication compliance and/or presence of drugs and/or alcohol; 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. 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. 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). 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. Finally, under the New York State Constitution, an individual can be medicated against his or her own will only upon a judicial finding that an individual lacks capacity to make a rational decision. According to Rivers v. Katz, 67 N.Y.2d 485 (1986), the New York Constitution requires that a court find, by clear and convincing evidence, that a person lacks "the capacity to make a reasoned decision" about medication, and that the court's order be narrowed tailored so as to interfere only minimally with the person's liberty. "Kendra's Law" provides for involuntary administration of psychotropic medication without such a determination. 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 these denials of liberty and will monitor the implementation of the law closely.