Court-mandated outpatient treatment in New York State, known as Assisted Outpatient Treatment (AOT), is a program designed to compel outpatient treatment and medication for individuals with serious and persistent mental illness who refuse to comply with treatment and become hospitalized or violent as a result. However, this program fails to acknowledge the impact of mental health treatment shortages. This error arises because the AOT program, and others like it around the country, falsely associates repeat hospitalization with treatment non-compliance. In many cases, treatment shortages, particularly housing shortages, are a major source of risk for repeat hospitalization. As such, thousands of individuals who struggle or are unable to secure limited mental health services are mischaracterized as dangerous, stripped of their rights to choose their treatment options, and are forced to submit to a court mandated treatment and medication regiment.
Since the creation of AOT in 1995, nearly 12,000 people in New York State have been subjected to court-mandated outpatient. As of 2012, approximately 3,330 people were currently compelled to the program. There are also major racial and geographic discrepancies in the implementation of the AOT program. According to New York Lawyers for the Public Interest (NYLPI) (2005), African Americans and Latinos are subject to AOTs at five and two and a half times the rate of their Caucasian counterparts, respectively. Furthermore, people living in New York City were four times as likely to receive an AOT compared to those living in the surrounding state (NYLPI, 2005). These disparities indicate a major bias in the implementation of AOTs and suggest that other factors are influencing the application of this severely restrictive program.
Current Policy and Background
Assisted Outpatient Treatment was introduced in New York through the 1999 legislation known as “Kendra’s Law.” This law was named in memory of Kendra Webdale, a 32-year-old journalist who was killed when Andrew Goldstein, a man with a severe and persistent mental illness, pushed her front of a subway (Hartocollis, 2006). Kendra’s Law provides the AOT mandate for people over the age of 18 suffering from a mental illness who are unlikely to survive safely in the community without supervision. AOTs can only be authorized by a judge and a hearing must prove either, A) lack of treatment compliance led to hospitalization at least two times in the last three years, or B) lack of treatment compliance led to threats or acts of serious violence to self or others in the last four years. In addition, the court must prove that the person’s mental illness makes them unlikely to participate in community-based treatment and that such treatment would be beneficial to prevent relapse and deterioration. (New York State Office of Mental Health, 2014)
Andrew Goldstein, after pleading guiltily to Kendra Webdale’s murder after failing to take his medication in 1997
Once approved, AOTs require case management services or an assertive community treatment (ACT) team. The person is required to follow a detailed treatment plan, which typically includes both services and medication. If a person chooses not to comply with the treatment plan, they will be arrested and locked in a psychiatric hospital for 72-hours. After such time, the standard civil commitment process begins where it is determined whether they should remain hospitalized or be released into the community. (New York State Office of Mental Health, 2014)
Critique of Assisted Outpatient Treatment
Some advocates for the mentally ill consider the AOT program a positive step because it mandates providers to ensure care for the mentally ill and prevents people from falling through the cracks (Van Dorm, 2010). There have also been many documented benefits from the AOT program including a decrease in homeless, hospitalization, incidences of harmful behavior (New York State Office of Mental Health).
While the positive outcomes should not be overlooked, we must ask ourselves, at what cost are we accomplishing such feats? What are the unintended consequences of compulsory treatment and are there hidden victims behind the data?
A major critique of the AOT program is that it is likely applied to a wider rang of individuals than the intended population. Specifically, it is applied to individuals for whom services are scare. Recall that the first requirement for AOT is at least two hospitalizations within the last three years. While courts must prove these hospitalizations were caused by treatment non-compliance, it is often difficult to identify non-compliance when voluntary services are limited or substandard.
In a tragic and ironic example, Andrew Goldstein, Kendra Webdale’s assailant, was determined treatment non-compliant because he was not taking his medication when he pushed Ms. Webdale onto the subway tracks. However, this ruling was made despite the fact that Mr. Goldstein’s family and social worker had been fighting desperately for years to obtain medication assistance and supervised housing for him (Wineripe, 1999). Mr. Goldstein was countlessly denied treatment due to shortages and was on a waiting list for housing at the time of Kendra’s death. Mr. Goldstein had been hospitalized fourteen times in the two years preceding Ms. Webdale’s death and was given no priority access to community-based services upon his release.
The assumption underlying the resulting legislation was that Mr. Goldstein was too ill to comply with treatment and should thus be striped of his rights in order to maintain public safety. This is an unfair and victim-blaming perspective. Mr. Goldstein was failed by the system. He was denied services and then punished for not accessing them. This is not to say that people with mental illnesses never refuse treatment. Rather, it is to say that inadequate mental health services are a much greater cause of hospital recidivism than treatment refusal. Instead of addressing this problem by improving services, Kendra’s Law and the AOT program has focused on stripping the mentally ill of their rights.
Mr. Goldstein’s experience is not unique, as many mental health services in New York are limited. According to the National Alliance for Mental Health (NAMI, 2009), New York State is in “Urgent Need” of acute care facilities, mental health housing, and crisis intervention teams. According to a report by the U.S. Substance Abuse and Mental Health Services Administration (2013), only 38.5 percent of individuals with a mental illness in New York receive adequate treatment. The shortage of housing services for people with mental illnesses is particularly significance because, “Without appropriate housing in place, recidivism is especially high within this population” (NAMI, 2013). As of 2013, NAMI estimated that 21,000 additional housing units were required to adequately address the needs of the mentally ill.
Because of service shortages, two major distortions of the AOT program have occurred. First, hospital recidivism, rather than a history of violence, has become the dominant mechanism of AOT authorization. According to a comprehensive evaluation of the program commissioned by the state, 66 percent of all AOT cases were opened at hospital discharge to reduce recidivism (Swartz, et.al. 2009). They also found that the majority of AOTs were obtained before seeking an Enhanced Voluntary Service Agreement (EVS). Furthermore, only 15 percent of AOT participants were found to have any history of violence.
The second distortion of the AOT program due to treatment shortages is that court mandates have become the most reliable avenue for an individual in New York to obtain mental health services. According to NYLPI (2005), because court mandates provide individuals with a “right to treatment” and priority access, AOTs are sometimes sought simply to get people treatment. This unfortunate and perverse distortion of the AOT program is of grave concern because it required the mentally ill to subject themselves to a subordinate legal status in order to be provided the care they need to live healthy, safe and productive lives.
Policy Recommendations
In order to improve the AOT system and ensure only those who are truly non-compliant are court-mandated treatment the following recommendations are provided. First, treatment shortages must be eliminated. This requires a significant increase in mental health financing and an increase in the number of supportive housing facilities, day program services, medication management, and intensive case management. Second, individuals with a history of hospitalization should be provided priority access to community based services and a “right to treatment.” This includes creating Enhanced Voluntary Service Agreement (EVS) for all individuals who have been hospitalized at least two times in the last three years, rather an the current requirement that these individuals are prescribed AOTs. Third, AOT authorization for individuals with a history of hospitalization should be amended to include proof that non-compliance occurred in the presence of reasonably accessible services.
With these recommendations, the need for court-mandated outpatient treatment will be significantly diminished. People with mental illness will have the resources that prevent hospitalization and those in critical conditions will have full-access to the services they need to get better. Most importantly, mental health consumers will maintain their rights, dignity, and freedom to choose their providers, medications, and service-delivery methods. Treatment shortages should not be tolerated and neither should the further disenfranchisement of the mentally ill.
While there may be limited instances where court mandates are necessary, we should resist these mechanism whenever possible. Court-mandates are an oversimplified solution for a challenging program. Ultimately, the currently AOT system unfairly robs individuals of their liberties, dignity, and falsely blame the mentally ill for treatment shortages when the onus is on society.
References
Hartocollis, A. (October 11, 2006). Nearly 8 Years Later, Guilty Plea in Subway Killing. The New York Times. Retrieved from: http://www.nytimes.com/2006/10/11/nyregion/11kendra.html?_r=0
National Association of Mental Health. (2009). Grading the states 2009 report card: New York. Retrieved from: http://www.nami.org/gtstemplate09.cfm?Template=/contentmanagement/contentdisplay.cfm&ContentID=75312
National Association of Mental Health. (2013). Legislative agenda: the need for safe and affordable housing for people with mental illness. Retrieved from: http://www.naminys.org/advocacy/2013-advocacy/2013-action-agenda
New York Lawyers for Public Interest. (2005). Implementation of Kendra’s Law is Severely Biased. Available at http://www.nylpi.org/images/FE/chain234siteType8/site203/client/DLC%20-%20Report%20on%20Kendra%27s%20Law.pdf
New York State Office of Mental Health (NYOMH1): Summary of Kendra’s Law. Available at: http://www.omh.ny.gov/omhweb/Kendra_web/Ksummary.htm
New York State Office of Mental Health (NYOMH2: Assisted Outpatient Treatment Reports: Outcomes. Available at: http://bi.omh.ny.gov/aot/outcomes
Swartz, M.S., Swanson, J.W., Steadman, H.J., Robbins, P.C. & Monahan J. (2009). New York State assisted outpatient treatment program evaluation. Durham, NC: Duke University School of Medicine (June, 2009). DOI: 10.1176/appi.ps.61.10.976
Substance Abuse and Mental Health Services Administration. Behavioral Health Barometer: New York, 2013. HHS Publication No. SMA-13-4796NY. Rockville, MD: Substance Abuse and Mental Health Services Administration, 2013.
Van Dorn, R.A., Swanson, J.W., Swartz, M.S., Wilder, C.W., Moser, L.L., Gilbert, A.R., Cislo, A.M., & Robbins, C.P. (2010). Continuing involuntary outpatient treatment: medication and hospitalization outcomes in New York. Psychiatric Services, 61(10) 1-6.
Winerip, M. (Nov 1999). Report faults care of man who pushed women onto tracks. New York Times. http://www.nytimes.com/1999/11/05/nyregion/report-faults-care-of-man-who-pushed-woman-onto-tracks.html?ref=andrewgoldstein
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