Outpatient Civil Commitment: A Look at Maryland’s New Legislation

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COMMENTARY

Outpatient civil commitment is one of those polarizing topics where many individuals are adamantly for or against legislation and where emotions are high on both sides. Advocates are often the parents of adult children with untreated mental illness, while patient and civil rights groups argue for the right to medical autonomy.

Outpatient commitment is often touted as something that can protect both the patient and society from the ravages of untreated psychiatric disorders. It is seen as a means to prevent violence by individuals with psychiatric disorders as well as homelessness, incarceration, inpatient hospitalization, family estrangement, and the inadvertent overuse of the health care system.

As the coauthor of a book on involuntary psychiatric care, I have not found a reason to be supportive of outpatient commitment for any but the very sickest of patients, and I do not feel it should be used in place of providing comprehensive, easy-to-access, voluntary treatment. When we mandate care, we remove the patient’s agency in their own treatment, risk setting up an adversarial relationship with those we treat, divert funds away from an underfunded mental health system for others, and frighten people away from seeking voluntary services for fear that they too might be court ordered to treatment.

Maryland is 1 of only 3 states that had not had civil outpatient commitment, also called assisted outpatient treatment (AOT). Legislation has been repeatedly proposed over the last 23 years, often spearheaded by the Treatment Advocacy Center (TAC),¹ a Virginia-based advocacy group. Until this year, the legislation has always been defeated. 

This year was different: In the final days of the 2024 Maryland General Assembly session, an outpatient commitment legislation bill passed.² Senate Bill 453/House Bill 576³ requires that all 23 counties in Maryland have outpatient commitment, and if a county does not implement it, the Maryland Department of Health is required to do so. The bill had bipartisan sponsorship and the strong support of Maryland Gov. Wes Moore.

The implementation of outpatient commitment is difficult, and in many places with legislation, it is not used at all. New York devoted funding to the program, and its AOT program was held as a standard. Recently, however, a New York Times article⁴ discussed difficulties the program is having.

Maryland may be the first state to require a statewide rollout, with the specific requirement for a care coordination team—specified as a psychiatrist, a case manager, and a certified peer specialist—and a $3 million fiscal note.² The Maryland Association of County Health Officers has estimated that each county will spend from $250,000 to up to $5 million annually on associated costs.^5,6 The hope is that this will be a mechanism for offering services more than forcing care and that the state will bear the burden if the counties cannot.

“I have been directing the emergency department for 10 years now, and the tools that are currently in place are failing our patients miserably. There is no mechanism to help those who suffer from symptoms that prevent them from appreciating the need to help themselves,” said Cynthia Major Lewis, MD, director of psychiatric emergency services at Johns Hopkins Hospital, in Baltimore, Maryland, who is an avid supporter of legislation for outpatient commitment. “At the end of the day, many of my patients remain homeless, estranged from their families, are being dragged into the emergency department on emergency petitions that further impact their rights, and many are dying early deaths. If there was more appreciation for which population of patients AOT is trying to target, I believe there would be less misinformation and more support for this program.”

The group Social Work Advocates for Social Change opposed the legislation,⁷ noting, “Each county would be compelled to establish AOT programs, with the Maryland Office of the Public Defender (MOPD) tasked with providing representation in related proceedings. Some of these provisions will cause considerable harm by causing increased involuntary treatment, overburdening the already strained mental health system, and negatively impact the relationships between mental health care providers and clients.” The group further noted that two-thirds of Maryland counties have shortages of mental health professionals.⁴

Outpatient civil commitment in Maryland will go into effect in July 2025. Although AOT is aimed at the sickest of patients who have repeated relapses because of nonadherence to psychiatric treatment, this legislation has a low bar for inclusion. Any interested party—a family member, a treating clinician, a roommate, an employer—can petition the court to place someone on outpatient commitment. The patient must have had 2 psychiatric admissions in a 36-month period, including very brief voluntary admissions. There is not a requirement that the patient have ever been committed to a hospital. The patient must have a severe and persistent mental illness and be nonadherent to treatment, and any relapses must include a level of dangerousness to the patient or others, which may include credible threats of violence or suicide.³ There are no set definitions of “severe and persistent,” and there are many individuals who could be captured with these criteria.

Although the inclusion criteria for AOT are wide, the logistics are neither easy nor clear. The hearings will be held in a public courthouse as a judicial matter, not in a hospital conference room by an administrative law judge. The treating psychiatrist must testify at the court hearing to present the treatment plan, and it is not clear how this will transpire if the patient refuses the evaluation and does not attend the court hearing. If the patient agrees to the stipulations of the treatment plan, the hearing will be canceled and the patient will not be placed on outpatient commitment.

There is also no obvious recourse if the patient then does not comply. For those who have AOT orders, failure to abide by them will not result in a contempt order or in hospitalization. So, there is a low bar that enables many individuals to be eligible for petition and a logistically complicated hearing process, and it is easily skirted by patients who want to avoid treatment.

The issue came up in the Maryland General Assembly as to what types of treatment the legislation specifically permits. The attorney general’s comments reportedly left it wide open: Outpatient commitment could include any type of medical care. Sen. Clarence Lam, MD, a physician, filed an amendment to limit the extent of what could be ordered, and that amendment was not passed.

In a live streamed meeting, the finance committee specifically discussed involuntary outpatient electroconvulsive therapy (ECT), implanted contraception, the off-label use of medications, and the discontinuation of medications used to treat substance use disorder. Written documentation of these meetings is difficult to find. The Maryland General Assembly’s office noted that legal interpretations are not available to the public or the media, and the live streamed meeting of the finance committee hearing is no longer available.

Psychiatrists in Maryland do not perform involuntary ECT on hospitalized patients, with the possible exception of catatonic patients who are under guardianship, so there is no reason to believe it will be used on outpatients. Involuntary implanted contraception is not in psychiatry’s purview, and it is hard to imagine a treatment plan that orders a patient to stop methadone or suboxone.

I listened to the finance committee’s hearing, and I felt like our legislators have very little understanding of what it is we do. I also had the sense that they were talking about individuals they saw as “other,” not about humans who have conditions to which they, or people they know, could be susceptible.

One concern is that such laws will cause individuals to shy away from voluntary treatment, and especially hospitalizations during crises, for fear of being court ordered to care, whether that fear is well founded or not. Another concern is that it might divert resources away from those who want care.

Legislation that limits civil rights for psychiatric patients has gone very wrong in the past, and while one hopes that only the most disabled of patients are captured and helped by this legislation, there are risks. For example, performer Britney Spears wrote of the abuses of her psychiatric guardianship in her memoir, The Woman in Me.⁸ In the book, she notes that she was well enough to perform a grueling schedule of concerts for years, yet she was required to pay a court-appointed attorney, and her guardian made decisions for her on many basic aspects of her life. Her guardianship lasted for 13 years, and there was a “Free Britney” movement of protestors.

The intent of Maryland legislation for AOT is to provide a mechanism to help untreated patients with intractable psychiatric conditions and to lend government support to this effort. A great deal of thought, discussion, and research went into the legislation, and the hope is that it captures the individuals who are homeless, who risk incarceration, and who suffer needlessly and die prematurely. If done well, it might ultimately give individuals more autonomy.

For the moment, there are too many questions about who will be targeted for AOT, how the logistics of getting individuals into courtrooms will work, how it will be implemented, and exactly what types of treatment can be mandated.

Dr Miller is a clinical psychiatrist and writer in Baltimore, Maryland. She is on the faculty at the Johns Hopkins School of Medicine.

References

1. Assisted outpatient treatment. Treatment Advocacy Center. Accessed June 10, 2024. https://www.treatmentadvocacycenter.org/aot/

2. Sample S. After 23 years, stakeholders celebrate court-ordered treatment in Maryland. Maryland Association of Counties. May 22, 2024. Accessed June 10, 2024. https://conduitstreet.mdcounties.org/2024/05/22/after-23-years-stakeholders-celebrate-court-ordered-treatment-in-maryland/

3. Mental Health-Assisted Outpatient Treatment Programs, S 453, 446th Leg (Md 2024). May 22, 2024. Accessed June 10, 2024. https://mgaleg.maryland.gov/2024RS/fnotes/bil_0003/sb0453.pdf

4. Harris AJ, Ransom J. Audit finds fatal lapses in mental health program meant to curb violence. New York Times. Updated February 9, 2024. Accessed June 10, 2024. https://www.nytimes.com/2024/02/08/nyregion/ny-kendras-law-audit.html

5. Hot topics. Maryland Association of County Health Officers. Accessed June 10, 2024. https://mdhealthofficers.org/

6. Sample S. Court-ordered treatment passed in MD—what’s next for counties establishing their own programs. Maryland Association of Counties. April 23, 2024. Accessed June 10, 2024. https://conduitstreet.mdcounties.org/2024/04/23/court-ordered-treatment-passed-in-md-whats-next-for-counties-establishing-their-own-programs/

7. Testimony in opposition of Senate Bill 453. Social Work Advocates for Social Change. February 20, 2024. Accessed June 10, 2024. https://mgaleg.maryland.gov/cmte_testimony/2024/fin/1Vo1T8gWhH5I92DA7QGjNuzmEcMi6UGfZ.pdf

8. Spears B. The Woman in Me. Gallery Books; 2023.