New York State Moves Toward Involuntary Residential Commitment of the Mentally Ill

Several incidents of serious violence, including the death of one woman, have pushed the issue of involuntary commitment of the noncompliant mentally ill higher on the priority list of the government of New York State.

In January 1999 Kendra Webdale, a young woman living and working in New York City, was killed after being pushed in front of an onrushing subway train by a mentally disturbed man. Several months later a man lost both his legs after he was pushed by a psychotic individual in front of an onrushing train.

Since then, members of the New York State Legislature have passed a bill called Kendra's Law, which will allow the courts to commit mentally ill people who do not voluntarily comply with treatment at residential outpatient facilities. Current state law allows the commitment to a hospital for people who are judged to be a danger to themselves or to others. And, although a variety of commitment laws exist in many states, the issues of cost and civil liberty are still at the forefront of the discussion in New York.

"The problem that you have is that the decision to commit somebody, which deprives them of their liberty on the basis that they are not mentally competent, is a very subjective one. There are no objective tests," explained Jerome Levy, J.D., former General Counsel for the New York State Department of Health.

For example, he continued, the criteria for commitment-whether the person is dangerous to themselves or others or will be so in the future if they don't follow treatment-is entirely predictive.

While he admits a law for involuntary commitment "sounds good on paper," Levy, currently a partner in the law firm of Arent, Fox, Kintner, Plotkin and Kahn in Washington, D.C., and New York, said he didn't think such a law would work.

"The trouble is we're going to have to build an exponential number of residential treatment facilities for the mentally ill and there's no public will to do that."

The state of New York, he added, had to pass a law superseding local zoning laws because people did not want residential treatment facilities in their neighborhoods.

"The fact is that if New York state had a billion dollar surplus the Legislature would rather give people a tax cut than they would construct 25 group homes," Levy said.

Kendra's Law, according to Lorrie Smith, spokesperson for Assemblyman James Brennan, one of the bill's sponsors, was to be matched to an appropriations bill of $210 million for additional facilities. The appropriation was not passed, and any necessary funds to implement the law must be approved by the governor of the state of New York.

Questions of civil liberties are equally important to the need for funding treatment centers, according to advocate groups such as the Bazelon Center for Mental Health Law, located in Washington, D.C. Although Bazelon's director, Robert Bernstein, Ph.D., acknowledges that there are situations where involuntary care is warranted, he went on to say, "It is highly speculative to say that someone may become violent two weeks from now because they're noncompliant with treatment today. There is really no good empirical body of knowledge that supports a judgment of that nature."

Bernstein, who is a psychologist, added that the very small proportion of schizophrenic people who become violent is not a reason to construct an entire social policy based on a small handful of tragic events. Other mental health advocacy groups, including the National Alliance for the Mentally Ill (NAMI), offer support to the idea behind Kendra's Law.

"Court-ordered outpatient treatment," according to NAMI statements, "should be considered as a less restrictive, more beneficial and less costly treatment alternative to involuntary inpatient treatment."

While he does not disagree with the idea of court-ordered commitment, Paul Appelbaum, M.D., vice president of the American Psychiatric Association, is not optimistic about it as a money-saving plan.

"That's a matter of active debate. And there's been data published that cuts both ways there. It is unlikely to cost more, but I wouldn't hold it out as a way of saving major dollars," Appelbaum said during a recent interview with Psychiatric Times. "We ought to talk about these programs as ways of providing better care for people [and] ensuring that more people receive the care they need."

Another national group that supports Kendra's Law is the Treatment Advocacy Center. D.J. Jaffe, a Treatment Advocacy Center board member from New York, explained during an interview, "For the mentally ill who have a past history of noncompliance it is the best predictor of future history, and it certainly is information we should be using when we're making these decisions."

Kendra's Law, he added, had many things in common with the Bellevue Outpatient Commitment Pilot Program. (See accompanying story-Ed.) The significant differences between the new law and the existing program, he continued, involve patient eligibility.

Under the Bellevue program-currently the only hospital in the state that is involved in involuntary outpatient commitment-only a hospital may request that a patient currently hospitalized due to noncompliance be committed. Under Kendra's Law, a whole list of others can petition for incarceration, according to Jaffe. Another difference lies in the length of time between previous hospitalizations for noncompliance. The Bellevue program allows involuntary commitment of a patient with two hospitalizations for noncompliance in an 18-month period; Kendra's Law doubles that period to two hospitalizations in 36 months, Jaffe noted.

Although some advocates may question the fairness of involuntary commitment laws because of a lack of empirical evidence for their efficacy, these questions have not been a hindrance to such laws in more than 20 states and localities in the United States.

In the District of Columbia, for example, the law completely avoids the need for additional criteria that civil libertarians often seek for outpatient commitment. Instead, District of Columbia law calls for a court hearing after 30 days for patients who have been admitted to St. Elizabeth's Hospital by involuntary emergency admission, explained Roger Peele, M.D., professor of psychiatry at George Washington University, during an interview with Psychiatric Times.

"They are already inpatients. The decision is whether to commit them as an inpatient or an outpatient, or let them go home well, when they arrived at that 30-day mark."

Involuntary emergency admissions occur when a person is seen as someone who will harm themselves or others, or who does not take care of themselves by eating properly or having a domicile.

"It's regarded as being dangerous to oneself. When you read the law you won't see that, but when you read the court decisions you will see it," Peele said.

In general, Peele noted, the outpatient commitment program in the District of Columbia has been a success.

"Since 1973, the District of Columbia has done more outpatient commitment than inpatient...It involves a judge telling the patient that they must follow treatment while they are outpatients in a group home or other residence. If they don't show up for treatment, the U.S. marshals will come by and pick them up and take them to St. Elizabeth's Hospital, the large public mental health hospital here. It's often the hospital they were in when this decision came up."

About 80% or 90% of those admitted on an emergency basis never even reach that 30-day mark, added Peele, who was involved with the program for several years. In addition to the emergency admissions that circumvent civil liberties arguments, the Washington, D.C., program is a success because commitment does not have an endpoint and is followed by a team approach.

"As an inpatient or outpatient doctor, I am seen as part of the team. In a lot of states there is not this unity, because very frequently the states are responsible for the hospitalization, but the city or county or a local contractor is running the clinic. So you don't have this sense of unity. It's more like a shotgun marriage," Peele said, adding that without unity, patients often slip through the cracks.

Predicting outcomes, a problem for both advocates and mental health providers, is less of a burden in North Carolina's program, according to Jeffrey W. Swanson, Ph.D., assistant professor in the department of psychiatry and behavioral science at Duke University, Durham, N.C.

In a study of the North Carolina outpatient commitment program by Swanson and colleagues, he found that the law was "designed as a less restrictive alternative to hospitalization for people who have a pattern of revolving-door admissions to psychiatric hospitals." This was accomplished by using past admissions as criteria to predict that without treatment the person would pose a danger to themselves or someone else.

Swanson added that the people who were placed on outpatient commitment and had their time extended beyond the minimal period allowed by the law "have about one-half the likelihood of committing any violent act compared to those who didn't get outpatient commitment or only got a brief period of that which was not renewed."