Outpatient commitment: the role of counsel in preserving client autonomy.

• Author: Bernfeld, R.A.

1. INTRODUCTION

   As long-term institutionalization for mentally ill people became disfavored, states began to develop programs for involuntary outpatient commitment ("IOC") (1) to provide treatment for mental illness. (2) IOC statutes allow a court to order outpatient treatment for a mentally ill person who can live safely in the community while being treated. (3) Such courtmandated treatment usually consists of psychiatric medication, but may also include services such as psychotherapy or case management. (4) In most states, IOC is subject to the same criteria as involuntary inpatient commitment, and is considered the least restrictive alternative to inpatient hospitalization or as a conditional release for patients who are being released from hospitalization. (5)

   In addition to providing a less restrictive alternative to institutionalization, some states' IOC statutes aim to prevent mentally ill people from reaching the point of requiring hospitalization. (6) These statutes "widen the net" of the state mental health system by allowing that system to supervise people with a severe mental illness who are not currently subject to involuntary hospitalization. (7) Furthermore, these statutes intend to protect the public from violence committed by people with an untreated mental illness. (8) They also aim to improve public health by providing treatment to mentally ill people before their condition becomes severe enough to require hospitalization. (9)

   This Note discusses IOC statutes from the perspective of mentally ill clients and their attorneys. IOC statutes, especially those including preventative IOC, are often passed after a highly-publicized violent crime committed by a mentally ill person, and advocates of the laws defend them based on the risk of violence they argue mentally ill individuals pose to the community. (10) The methods used to compel treatment for violent, mentally ill individuals are then applied to nonviolent, mentally ill individuals. (11) Although nonviolent, mentally ill people may require some form of community-based care to prevent homelessness or institutionalization, this Note argues that applying a standard to all mentally ill people that assumes a risk of violence fails to serve their needs. (12) To uphold individual autonomy rights as much as possible in the face of IOC statutes, advocates for mentally ill individuals must be guided by the client's objectives and attempt to achieve an outcome that will be acceptable to that client. (13)

   Part II of this Note examines involuntary outpatient commitment statutes, with an emphasis on preventative IOC. (14) Part III begins with a brief examination of the history of involuntary commitment and treatment. (15) Part III then explores the constitutional issues surrounding IOC. (16) Next, Part IV-A addresses some of the reported benefits of IOC statutes as well as the concerns surrounding their use. (17) Finally, Part IV-B analyzes how IOC statutes can be used to obtain the necessary services for mentally ill clients, and addresses remaining concerns about effectiveness and patient autonomy. (18)

2. FACTS

   1. Background on Involuntary Outpatient Commitment

      The earliest outpatient commitment statutes were passed in the 1950s after government and public opinion began to turn away from the large-scale institutionalization of mentally ill people. (19) The introduction of antipsychotic medication to treat the positive symptoms of psychosis, such as delusions and hallucinations, also aided the shift toward outpatient treatment.20 These early laws acted as a form of conditional release for people who were institutionalized but found to be capable of living in the community with supervision and treatment. (21) Outpatient commitment also acted as the least restrictive alternative for individuals who met the already-existing standard for involuntary commitment as an inpatient. (22) Both of these models use the same legal standard for IOC as they do for inpatient commitment, meaning that only someone who would otherwise need hospitalization was subject to court-ordered treatment. (23)

      In recent years, another form of IOC has developed, known as preventative outpatient commitment. (24) Unlike other forms of outpatient commitment, these laws seek to bring into the state mental health system those persons who would not otherwise have been subject to involuntary commitment. (25) Generally, preventative IOC statutes are enacted with the hope of preventing future dangerousness among mentally ill people who are not deemed dangerous by clear and convincing evidence. (26) These statutes also aim to prevent mental illness from deteriorating to the point when the individual requires hospitalization, by providing treatment to the person before he or she reaches that point of commitment under traditional standards. (27) In this way, preventative IOC can work as a device to bring scarce mental health resources to those in the community who need it most. (28) However, the laws also subject a larger group of people to coerced mental health treatment, thus creating concerns involving civil liberties. (29)

   2. Kendra's Law

      The paradigmatic preventative IOC statute is New York's Kendra's Law. (30) Kendra's Law was passed in 1999 following a publicized incident in which a mentally ill man, Andrew Goldstein, killed a woman by pushing her into the path of an oncoming train. (31) Doctors had previously diagnosed Mr. Goldstein with schizophrenia, and he had sought treatment in the community; however, he had been refused due to insufficient resources. (32) Kendra's Law allows the court to order any individual meeting its requirements to comply with case management and a treatment plan that commonly involves medication. (33)

      Individuals are subject to court-mandated treatment under Kendra's Law if they meet seven eligibility requirements. (34) These requirements include that the person must be eighteen years of age or older and be diagnosed with a mental illness. (35) He or she must be "unlikely to survive safely in the community without supervision," as determined by the interviewing psychiatrist. (36) He or she must have a history of lack of compliance with treatment, which has resulted either in two or more hospitalizations within the last thirty-six months, or in one or more acts or threats of violence within the past forty-eight months. (37) He or she must be "unlikely to voluntarily participate in outpatient treatment." (38) Finally, the person must be in need of outpatient treatment to prevent a "relapse or deterioration," and must be likely to benefit from outpatient treatment. (39) However, no finding of incompetency to make treatment decisions is necessary to subject a person to a court order, and a Kendra's Law order is explicitly prohibited from being used to determine incompetency. (40)

      Any of a variety of parties can file a petition to initiate proceedings under Kendra's Law, including anyone living with the mentally ill person, an immediate family member of the mentally ill person, or a treating psychiatrist or psychologist. (41) Additionally, the petition must be accompanied by an affidavit of a physician who has examined the person or has been unable to complete the examination due to lack of cooperation. (42) After the court receives the petition, it must conduct a hearing within three days. (43) If the person who is the subject of the petition fails to attend the hearing, the court may conduct the hearing and issue the order in the subject's absence. (44) Finally, the statute grants the person who is the subject of the petition a right to counsel. (45)

      If the court determines that the person meets the criteria for IOC, it issues an order mandating compliance with the examining physician's written treatment plan. (46) The subject of the petition and his or her treating physician must be given the opportunity to participate in the process of creating the treatment plan. (47) The court does not have the authority to order treatment that deviates from the written plan. (48) The initial order lasts for six months, and can be extended for periods of one year at a time. (49) A person who violates the order, for example, by declining to take medication as ordered in the treatment plan, can be removed to a hospital and detained for up to seventy-two hours for observation. (50) Any longer period of detention must comply with standard involuntary commitment procedures, and non-compliance with the order is not itself grounds for commitment. (51)

   3. Other Preventative IOC Statutes

      The first state to enact a preventative outpatient commitment statute was North Carolina in 19 8 3. (52) North Carolina's statute allows any person to appear before a magistrate and petition the court to take a mentally ill individual into custody for examination. (53) For such an order to issue, the court must find that the mentally ill individual is dangerous to others, dangerous to himself or herself, or requires treatment to prevent "deterioration that would predictably result in dangerousness." (54) The examining physician may recommend inpatient or outpatient treatment; if outpatient treatment is recommended, the court must hold a hearing to determine whether the individual will be subject to IOC. (55) For the court to order IOC, the subject must be mentally ill, capable of surviving safely in the community with supervision, in need of treatment to prevent deterioration that would result in dangerousness, and the individual's mental illness must limit his or her ability to accept voluntary treatment. (56) Because the person subjected to the petition is taken into custody, North Carolina's law allows a more immediate intrusion into a subject's civil liberty interests than Kendra's Law; however, because the criteria require dangerousness rather than merely "deterioration," it ultimately covers a more limited group of people. (57)

      In contrast, California's IOC statute, known as Laura's...