Introduction I. THE RISE OF OUTPATIENT COMMITMENT A. Deinstitutionalization 1. The (Broken) Promise of Community Mental Health 2. A Changing Legal Landscape 3. "Rotting with Their Rights On" B. Preventive Outpatient Commitment 1. New York a. Mechanics b. Program Implementation 2. California 3. North Carolina C. Empirical Research on Effectiveness 1. Randomized Controlled Trials 2. Observational and Quasi-Experimental Designs D. Constitutional Challenges II. MORAL JUSTIFICATIONS AND PUBLIC POLICY RATIONALES A. Harm to Others 1. Violence and Mental Illness a. Community Surveys b. Psychosis and Violence 2. Risk Assessment and Violence 3. The Criminal-Civil Distinction B. Harm to Self 1. Autonomy Defined 2. Conceptual Hurdles and Replies 3. Autonomy and Mental Illness 4. When--if Ever--Is Paternalism Justified? a. Retrospective Endorsement Theories b. The Soft Paternalist Strategy C. Impaired Insight 1. Impaired Insight Defined 2. The Neuroscience of Insight 3. Impaired Insight in The Courtroom 4. An Objection from Autonomy III. THE LIMITS OF PREVENTION A. Harm to Self 1. Competence to Refuse Treatment a. Understanding and Appreciation b. Reasoning and Communication 2. Competence without Insight B. Harm to Others 1. Cognitive Impairment 2. Volitional Impairment IV. Objections and Conclusions INTRODUCTION
In the years since deinstitutionalization, one of the most important questions in mental health policy is this: how can we care for psychiatric patients in the community who need treatment but resist treatment nonetheless? The problem is particularly apparent for people with chronic mental illnesses who are high utilizers of inpatient care--so called "revolving door patients." These patients improve when they are hospitalized and treated with psychotropic medications but frequently stop taking their medications shortly after they are released, creating a cycle of relapse and rehospitalization. (1) Eventually, revolving door patients will deteriorate and meet the criteria for inpatient civil commitment--clear and convincing evidence of mental illness and dangerousness to self or others. However, involuntary outpatient commitment laws permit courts to intervene and order people with mental illnesses to comply with treatment in the community. A subtype of involuntary outpatient commitment--known as preventive outpatient commitment-- permits court-ordered treatment for people with mental illnesses who do not satisfy the criteria for inpatient commitment. Proponents of these laws tout them as a solution to the revolving door problem.
Forty-two states and the District of Columbia have involuntary outpatient commitment laws. At least nine jurisdictions permit preventive outpatient commitment. (4)Several states, including California, New Jersey, Florida, and Michigan, have enacted involuntary outpatient commitment statutes of both varieties in recent years. Although some states rarely use their outpatient commitment laws, other states have been more aggressive. (5) Since New York established its outpatient commitment program in 1999, 12,218 New Yorkers have been under a court order to participate in mental health treatment. (6) The shootings in Newtown, Connecticut; Aurora, Colorado; and Isla Vista, California have prompted other states, including Connecticut, Nevada, and Pennsylvania, to consider adopting outpatient commitment statutes or strengthening existing provisions. In Congress, The Helping Families in Mental Health Crisis Act (H.R. 3717) would authorize $60 million dollars in federal grants over four years to implement outpatient commitment programs. (8) Although outpatient commitment orders were first introduced in the United States, they are also an international phenomenon. Outpatient commitment laws exist in Israel, Canada, Australia, and New Zealand. (9) Amendments to the 1983 Mental Health Act introduced outpatient commitment orders to England and Wales in November 2008. (10)
Several states have modeled their outpatient commitment statutes on New York's preventive outpatient commitment law, known as Kendra's Law. (11) New York passed Kendra's Law in memory of Kendra Webdale, a young woman who was pushed to her death in front of an oncoming train by Andrew Goldstein, a man with untreated schizophrenia. Under Kendra's Law, a court can order a person with a mental illness to participate in an "assisted outpatient treatment" (AOT) program. A typical AOT order includes a host of interventions designed to improve medication compliance in the community, among them--periodic blood tests or urinalysis to determine compliance with prescribed medications; counseling and toxicology screens for patients with a history of substance abuse; group therapy, day or partial day programming; and supervised living arrangements. (12) For those who are not under a supervised housing requirement, courts will sometimes order an assertive community treatment (ACT) team to visit the patient's home.
Much of the controversy surrounding outpatient commitment has focused on the legal rights of people with mental disabilities and whether these laws are an effective solution to hospital recidivism. (13) Yet even if these laws are effective and fall within the wide boundaries set by constitutional norms, hard moral questions remain. The central concern of this Article can be thought of in terms of the following question: under what circumstances can we impose substantial restraints on individual liberty because we believe a person is likely to harm himself or others before he has actually done so?
Supporters of Kendra's Law rest the moral justification for intervention on harm to self and others. Yet by itself, harm fails to provide a principled distinction between people with mental illnesses and others who might also refuse treatment. Consider the alcoholic who persists in driving drunk. We could easily imagine a Kendra's Law for people with substance abuse disorders--replete with weekly Alcoholics Anonymous meetings, toxicology tests, and home visits where ACT teams conduct "bottle checks" instead of pill checks. Such a regime would pay dividends in preventable deaths due to vehicular homicide, yet we do not have one. Instead we rely on the criminal law to deter these harms.
Resting the argument for assisted outpatient treatment on harm to self seems equally problematic. We do not require people with diabetes to take medications that have the power to prevent blindness, amputation, coma, and death. Nor do we require smokers to stop smoking any more than we require people with cardiovascular disease or high cholesterol to participate in classes on the dangers of inactivity and a fatty diet. As a general matter, courts do not intervene in self-regarding treatment decisions, without a finding of incompetence, no matter how grave the potential harm.
Supporters of outpatient commitment contend that quite unlike people with diabetes, cardiovascular disease and high cholesterol, many people with major mental illnesses like schizophrenia, bipolar disorder, and depression lack insight into their illnesses, and when combined with a substantial risk of harm to self or others, this lack of insight provides sufficient justification for court ordered treatment, even when they do not meet the legal definition of incompetence. (14) In psychiatry the term "insight" refers to a person's awareness that he or she is suffering from a mental disorder. (15) Conventional definitions of competence to refuse treatment include insight as an element of competence. In recent years, the notion that impaired insight provides a moral justification for outpatient commitment has grown tremendously in popularity and influence. I will argue that impaired insight fails to provide a strong justification for outpatient commitment.
Most authors on bioethics and mental health law rest the moral justification for outpatient commitment on a mental impairment--be it impaired insight, decisional-incapacity, or incompetence to refuse treatment. (16) What should we say about a person who presents a substantial risk of harm to others by virtue of mental illness but who is competent to refuse treatment nonetheless? One response is to do nothing and claim that our hands are tied until the person commits or attempts a crime. (17) Below I argue that a court order to participate in outpatient treatment may be permissible notwithstanding a finding of incompetence. Our challenge, however, will be to distinguish persons with mental disorders who are appropriately subject to preventive intervention through outpatient commitment from others whose dangerous behaviors are more appropriately controlled by the criminal law.
Part II. A sets the stage for discussion by providing a brief history of institutionalization, deinstitutionalization, and their critics, with a focus on the circumstances leading to Kendra's Law in New York. Part II.B describes preventive outpatient commitment laws in New York, California, and North Carolina. Part II.C discusses empirical research on outpatient commitment, while Part II.D examines constitutional challenges to outpatient commitment laws. Part III opens the analytic section of this Article by refuting common justifications for outpatient commitment. There is a place for outpatient commitment, but in their current form outpatient commitment statutes violate basic moral norms. To that end, Part IV develops a rights-based moral framework for involuntary outpatient commitment. (18) I begin by contrasting consequentialist with non-consequentialist theories of moral justification. From a utilitarian outlook, individual rights have no moral force aside from their contribution to utility; however, the framework I present in Part IV is a distinctly liberal one. It denies that moral rights can be infringed simply because doing so would produce gains in utility.
Although most bioethicists claim that outpatient commitment orders are justifiable if they are...