NICOLA'S LAW: AN UNDERUSED TOOL FOR LOUISIANA.

Author:Ford, Rachel
 
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TABLE OF CONTENTS INTRODUCTION I. Background A. Mental Asylums and the Institutionalization Era B. Modern Day Involuntary Civil Commitment C. Mental Health Care in the United States D. Louisiana's Mental Health Care Crisis II. The Adoption of Nicola's Law in Louisiana III. Assisted Outpatient Treatment A. The History of Assisted Outpatient Treatment B. The Potential Benefits of Assisted Outpatient Treatment 1 AOT Reduces Hospitalization 2 AOT Reduces Homelessness 3 AOT Reduces Violence, Crime, and Victimization 4 AOT Reduces Arrests and Incarceration 5 AOT Improves Treatment Compliance 6 AOT Reduces Caregiver Stress IV. Proposed Legislation to Amend Nicola'a Law V. Proposal for AOT Pilot Program CONCLUSION INTRODUCTION

It is not "freedom" to be wandering the streets, severely mentally ill, deteriorating and getting warmth from a steam grate or food from a garbage can; that's abandonment. And it is not "liberty" to be in a padded jail cell instead of a hospital, hallucinating and delusional, without treatment because that is all the law will allow. (1)

On a Monday morning in January 2008, Bernel P. Johnson wrestled the gun away from a young, pregnant police officer, Nicola Cotton, and shot her several times with her own service weapon. Upon arrival of backup officers, he handed them the weapon. (2) Mr. Johnson, who had a history of serious mental illness, had been committed three weeks prior to the devastating incident when officers perceived that he had a mental illness and considered him dangerous to others. (3) Although he was committed to a state mental hospital, he was released shortly before the shooting. (4) At the time of the tragedy, Mr. Bernel was not in treatment or taking his medication. (5) The tragedy was a gruesome reminder of a lack of mental health services in the city following the devastation of Hurricane Katrina (6) and prompted the passing of Louisiana's Assisted Outpatient Treatment statute, commonly known as "Nicola's Law." (7)

According to the National Institute of Mental Health, one in five U.S adults live with a mental illness. (8) When untreated, mentally ill individuals are at a high risk for a number of negative circumstances, including homelessness, hospitalization, and incarceration. Today's modern mental health care system is the result of a movement called deinstitutionalization (9) and is often described as "the largest failed social experiment in twentieth-century America." (10) Although intended to end the deplorable, inhumane conditions of asylums, the tightening of criteria for involuntary psychiatric hospitalization and lack of resources resulted in the overrepresentation of individuals with mental illnesses in the nation's homeless and correctional population. Further, involuntary hospitalization has become "a quick and limited fix for acute and severe mental pathology rather than a step toward long-term psychiatric care." (11)

Assisted outpatient treatment, also known as outpatient commitment, is a civil legal procedure whereby a judge can order an individual with serious mental illness to follow a court-ordered treatment plan in the community. (12) Although controversial, court-ordered assisted outpatient treatment has entered the mainstream since New York enacted "Kendra's Law" (13) in 1999. Despite evidence indicating the success of outpatient treatment, the law is still underutilized in many states that have adopted similar statues, including Louisiana. Because of the clinical success and cost-effectiveness of assisted outpatient treatment programs, (14) Louisiana stands to benefit from enacting a program within the state.

This comment argues that the implementation of an assisted outpatient treatment pilot program in Louisiana could reduce incarceration, hospitalizations, and homelessness rates amongst the population of individuals with serious mental illnesses and improve their lives and that of their caregivers. Part I discusses the evolution of modern civil commitment statutes in response to an international shift from institutionalization to community care treatment for individuals with serious mental illnesses. It also provides general information regarding the current treatment of individuals with serious mental illness and their susceptibility to homelessness, incarceration, and hospitalization. Part II examines Louisiana's adoption of an assisted outpatient treatment statute, known as "Nicola's Law." Part III addresses the recent development of court-ordered assisted outpatient programs among the states and the positive, available evidence regarding their utilization. Part IV discusses key proposed changes to the law by the state legislature which could assist implementation of a pilot program. Part V includes a proposal for the execution of assistive outpatient treatment pilot program in Louisiana. As assisted outpatient treatment programs vary by state, this would allow Louisiana to research and gather evidence regarding the effectiveness and further use of the statute in the state.

  1. BACKGROUND

    Civil commitment (15) in the United States evolved over time due to multiple factors, such as sensitivity to civil rights, public perception of psychiatry, availability of resources, and larger economic pressures. (16) Today's system is the result of a movement away from an era of focused institutionalization toward more humane involuntary commitment standards. (17)

    1. Mental Asylums and the Institutionalization Era

      Before the rise of state-run mental institutions, privately funded asylums were established to treat individuals with mental illness in the United States. (18) However, there were several reports concerning their unsanitary and poor conditions. (19) Through the actions of reformists, public asylums were opened and the widespread establishment of state-run mental institutions soon followed. (20) Eventually, asylums became long-term homes for chronic patients whose care consisted of restraints and medications. (21) Populations in America's asylums swelled to more than 500,000 during the 1950s and reached an all-time high of 559,000 in 1953. (22)

      During this time, the societal view in America was that individuals with mental illness lacked capacity to make decisions, and there were no distinctions between voluntary and involuntary admissions to psychiatric hospitals. (23) Essentially, all admissions were involuntary. As state commitment standards evolved, courts articulated two primary legal principles that give states an interest in the civil commitment of people with mental illness. First is the parens patriae authority which gives the state the power and responsibility to intervene on behalf of citizens who cannot act in their own best interests. (24) Second is the police power, which obligates states to protect the interest of their citizens. As a result of these legal principles and the presumption that mentally ill patients were incapable of making decisions, commitment standards merely required the presence of mental illness and a need for treatment during this era. (25)

    2. Modern Day Involuntary Civil Commitment

      Beginning in the 1950s, the United States experienced a change in its treatment of the mentally ill involving a movement toward a tolerant, humanistic approach. (26) This period of deinstitutionalization resulted from several factors beginning with accounts of insufferable conditions in public mental hospitals. (27) A push for mental hospital reform became prevalent in American psychiatry and was supported by treatment innovations of the period. (28) Furthermore, the development and introduction of neuroleptic medications and changes in psychosocial treatment permitted the first large-scale changes in the public hospital system. (29) Deinstitutionalization efforts coincided with a large international movement toward community-oriented care. (30)

      In 1963, the United States Congress passed the Community Mental Health Centers Act and instituted the first national policy of community care for the mentally ill. (31) This act codified the closure of state psychiatric hospitals in the United States and was a means of facilitating the transitioning of patients from inpatient psychiatric hospitals to communities. (32) Along with social developments, deinstitutionalization became judicially sanctioned when federal and state courts heightened standards for commitments. (33) New civil commitment laws were written to provide greater protections to individuals with mental illnesses, including a patient's right to a trial with an attorney present and increased oversight by courts throughout the duration of confinement. (34) In addition, states adopted stricter civil commitment standards, shifting away from the traditional need-for-treatment model to a narrower "dangerousness to self or others" standard. (35) In its landmark decision, O'Connor v. Donaldson, the Supreme Court held that "a State cannot constitutionally confine without more, a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." (36) Moreover, the Court increased the state's burden of proof from a "preponderance of the evidence" to "clear and convincing evidence" in regard to establishing dangerousness. (37)

      Each state's civil commitment criteria reflect standards set forth in O'Connor u. Donaldson. Coupled with the redefinition of criteria for involuntary hospitalization, there was also a shift in procedural standards for civil commitment that granted potential psychiatric inpatients greater procedural safeguards. For example, states determined that individuals could only be held against their will for a short, pre-determined period of time that varied by state from two days to approximately two weeks. (38) After this, patients were entitled to a hearing before the court to determine whether their involuntary commitment should continue. (39) In 1964, another important case...

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