New Mexico's Rejection of Involuntary Outpatient Treatment a Growing National Trend;
USPRA Reaffirms Its Opposition to IOC
April 10, 2007
In recent years, state legislatures struggling with finding the most appropriate and effective means to best engage and serve at risk individuals with psychiatric disabilities have increasingly rejected mandated outpatient measures in favor of more broadly supported, scientifically backed approaches that balance effective and cost-effective evidence-based practices with respect for the rights and relationship-based issues that are involved.
New Mexico 2007
Last month, the New Mexico State legislature rejected mandated outpatient treatment legislation patterned on New York's Kendra’s Law for the second year in a row. At the same time, the legislature approved a measure to enhance New Mexico's nationally acclaimed Behavioral Health Collaborative, a single statewide entity that integrates funding and services formerly housed under 19 separate state agencies that has received high marks for its exemplary access to care. This past summer, a New Mexico District Court judge rejected as unconstitutional a mandated outpatient treatment measure that had been put forward by the Albuquerque Town Council.
Virginia 2007
Last month, despite the Virginia State legislature nonetheless once again rejected a number of mental health bills in 2007 that would have expanded mental health treatment commitment criteria.
Instead, under the auspices of the Chief Justice of the Virginia Supreme Court, Virginia has convened a mental health commission that is likely to make comprehensive reform recommendations for the 2008 legislative session.
Following the bill’s defeat, the Bazelon Center for Mental Health Law’s Ira Burnim asked a local newspaper "When is it appropriate for the state to take over your life?" Somehow the notion is that because people have this particular form of illness, we can treat them in ways we'd never treat anyone with other forms of illness." Times Community February 26, 2007
New York 2005
In 2005, the NYS Legislature had sufficient questions about its ‘model’ Kendra’s Law program, by its questionable research and by a host of unanswered questions about the program's implementation, that it extended its oversight role by refusing to make the law permanent, rejected efforts to expand the use of forced outpatient treatment and at the same time, required that an independent body conduct a more scientific evaluation. The law limiting extension notes that “questions remain regarding…the outcomes for persons receiving services under a court order and for those voluntarily receiving enhanced services.” While advocates for outpatient commitment have relied heavily upon New York studies, the legislature was unconvinced of their validity and instead required an independent scientific study by leading national researchers. At that time, the Newsday editorial board urged that such the law should not be made permanent “unless studies show that the court orders, which circumscribe the rights of the mentally ill, are critical to the law's success, noting that “a previous experiment with assisted outpatient treatment suggested that the key component could be the enhanced services and intensive follow-up the law mandates (Newsday May 2005).”
Connecticut 2000
In the spring of 2000, the Connecticut state legislature rejected legislation creating a mandated mental health outpatient treatment order. Alternatively, they created a task force comprised of family members, consumers, service providers and state and local agency officials to make recommendations regarding the most effective ways to serve unengaged ‘at risk’ individuals.
After months of study, the Task Force recommended against the use of mandated outpatient treatment and instead urged the adoption of more active outreach and engagement services staffed by trained ‘peers’ (persons in recovery from psychiatric disabilities); it also successfully pushed for the increased use of advance directives.
At that time the prominent Hartford Courant found that enacting such laws would be like “trying to fix a leaky faucet with a blow torch” and would “essentially make it illegal for mentally ill people to refuse treatment or to take their medication.”
The Courant editorial bemoaned that “legislators in about 40 states appear to have fallen into a similar trap in jumping on the bandwagon for involuntary hospital commitment that foments unwarranted fear of the mentally ill.” They concluded that mandated outpatient treatment is the “the wrong tool and detracts from the most pressing problem” (improving and enhancing services to best serve at risk individuals).
Maryland 2000
Due to strong opposition by leading state mental health advocacy groups, as well as the Department of Health and Mental Hygiene, Maryland’s 1999 involuntary outpatient commitment measure failed to get out of committee. The Joint Chairmen of the Senate Budget and Taxation Committee and the House Appropriation Committee then directed the Mental Hygiene Administration and the Office of the Attorney General to study the “feasibility and advisability of a pilot project for involuntary outpatient commitment.”
Accordingly, the state mental health agency then convened a task force of stakeholders, including advocacy/family groups, the Protection and Advocacy agency, community providers, county core service agencies, the Judiciary, Johns Hopkins Medical School, University of Maryland Medical School, private psychiatric hospitals, and a representative from the Maryland General Assembly.
The workgroup met 12 times and examined laws in other states, professional literature and invited three national experts to address this issue. The workgroup concluded that legislation to mandate treatment would not be advisable and, in the alternative, recommended “enhanced” community services and psychiatric advance directives.
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Last month, the Board of Directors of the United State Psychiatric Rehabilitation Association, our national organization, reaffirmed its longstanding opposition to involuntary outpatient commitment measures in America.
U.S. Psychiatric Rehabilitation Association
Position Paper on Involuntary Outpatient Commitment
Approved by the Board of Directors
March 22, 2007
In the Final Report of the President’s New Freedom Mental Health Commission issued in 2003, recognized experts in the field of mental health services, psychiatric rehabilitation, and recovery detailed the critical need for mental health care to be consumer and family-driven as a primary goal for the transformation of systems of care. Similarly, published reports from the Institute of Medicine (2006) contend that mental health services must be “patient-centered,” meaning that care must be “respectful of and responsive to individual patient preferences, needs, and values.” Despite the fact that these evidence-based reports clearly support the need to reduce and potentially eliminate coercive treatments among mental health consumers, such as Involuntary Outpatient Commitment (IOC) and the use of seclusion and restraint, these practices continue in many mental health settings. Procedures such as IOC and seclusion and restraint should no longer be recognized as treatment options, but should be seen as treatment failures.
Involuntary Outpatient Commitment, known euphemistically as “Assisted Outpatient Treatment,” is a process by which individuals’ options regarding the conduct of their lives are constricted, narrowing their opportunities for growth. Although IOC laws vary from state to state, generally they require individuals with psychiatric diagnoses to take medication and comply with involuntary outpatient treatment recommendations, or risk being placed in inpatient psychiatric hospitals. Currently, the requirements for IOC may be defined very loosely (i.e., diagnosis of a major mental disorder and a history of treatment noncompliance) or very tightly (i.e., imminent risk of danger to self or others). Overall, however, there is little standardization, and few specific guidelines, for recommending IOC. Typically, laws and procedures rely on past behavior as a predictor of future behavior or rely on a subjective assessment of current community functioning (Bazelon Center for Mental Health Law, 2006). IOC is not a clinical process but, rather, a legal one; it is derived from political principles, not from recovery principles.
The United States Psychiatric Rehabilitation Association (USPRA) objects to the use of Involuntary Outpatient Commitment in any form. The Association finds that the application of IOC: (1) fundamentally violates the constitutional right to privacy and due process among individuals in recovery from psychiatric disabilities; (2) has been historically overused in urban areas and disproportionably applied to people of color; and (3) represents an abject failure of the public mental health system, coercing and forcing treatment as a substitute for poor public funding and systems transformation to use of evidence-based practices (EBPs). As noted below, each of these three issues is discussed, documenting empirical evidence from numerous research and program evaluation studies. As noted in the literature, IOC represents a form of treatment contrary to principles of recovery and the promotion of community integration and self-determination.
1. IOC is a Discriminatory Practice and Violates the Civil Rights of People with Psychiatric Disabilities
Involuntary Outpatient Commitment, as problematic as it is on multiple levels, is always presented to community stakeholders as a solution to treatment non-adherence. Why don’t people with a diagnosis of a mental illness follow doctors’ orders? Largely for some of the same reasons that people with chronic medical conditions, such as heart disease, cancer, diabetes, or any other ailments, fail to adhere to treatment: because they don’t want to perceive themselves as patients; because they perceive the side effects of medication as being worse than the illness itself; because they simply forget; and a variety of other reasons common to all patient groups (Neutel &Smith, 2003; Pumilia, 2002; Schroy, 2002). People in recovery from mental illness differ in their rationale for non-adherence. Major factors include the extreme stigma, prejudice, and discrimination they have suffered for being diagnosed with a mental illness, a prejudice which is only reinforced by the existence of restrictive practices such as IOC.
Despite the many normalized reasons for not taking medication that are cited above, advocates for Involuntary Outpatient Commitment routinely invoke cognitive disruptions related to the symptoms of mental illnesses as the sole reason for non-adherence, perhaps in an attempt to justify why people with diagnoses of a mental illness are treated differently from other groups. However, there are people who smoke, overeat, take medication incorrectly (or not at all), or otherwise act in ways that are contrary to their own health interests. Yet no laws exist compelling these non-adherent populations to do otherwise. In fact, one-third of all prescriptions are never filled, and over half of prescriptions that are filled are incorrectly administered, leading to an estimated 125,000 deaths per year (Peterson et al., 2003). Additionally, in accordance with their mission, USPRA asserts that different cultural groups may exhibit specific cultural patterns, which can appear problematic, “abnormal,” or non-adherent in our society, but are normal and common cultural patterns in that particular group. Culturally competent practitioners have knowledge of these factors and incorporate strategies to address them into services (Rogers et. al., 2006).
Involuntary outpatient commitment is predicated not on the illegality of past actions, but rather on the unreliable prediction that persons with psychiatric diagnoses are likely to be both non-adherent in the future and that anticipated non-adherence will lead to dire consequences, either for the individual or the community. It is for that reason that IOC is at odds with the Constitutional protections that all citizens enjoy, and is itself more evidence that people with diagnoses of mental illness experience wide-spread institutionalized discrimination. In particular, IOC of law-abiding people is a violation of constitutionally guaranteed, substantive due process. It is contrary to the most important American values and those for which other democracies claim to stand. In recognition of these rights and the inconsistencies that IOC represents, USPRA stands in opposition to IOC as a matter of law and practice.
Central to USPRA’s mission of recovery from psychiatric disabilities is the integration of persons diagnosed with mental illnesses into the community and self-determination. With whose voice does the community speak when it invokes involuntary outpatient commitment? It speaks with the voice of the judge and the prosecutor, as well as individuals who fear mental illness as a result of stigma and misinformation. The IOC process values the perceived safety of the community over the rights of individuals to find their path to recovery. Persons who are apt to feel themselves judged merely for having the diagnosis of a mental illness experience the unhappy reality of institutional judgment. Equally damaging, IOC conjoins the system of treatment services with the criminal justice system, validating for our most hesitant and suspicious potential treatment participants the idea that the therapeutic community is somehow in league with authoritarian elements, because, in fact, it is. This is not to say that sanctions should not exist for people who have committed crimes; members of the community, with or without a mental illness, who have been afforded the due process protections of law and are determined to be guilty of criminal behaviors, can and should be held accountable for their actions.
2. Use of Involuntary Outpatient Commitment Discriminates Against People of Color
USPRA endorses multicultural diversity principles as the foundation for providing effective multicultural psychiatric rehabilitation services. These multicultural principles endorse that every person’s gender, ethnicity, sexual orientation, level of ability/disability, age, and socioeconomic status, uniquely define his or her needs and recovery. Sadly, the anecdotal and historical data collected to date indicates that the mental health system fails people of color. Implementing, enforcing or expanding Involuntary Outpatient Commitment, in effect, further denies people of color access to the most helpful services and perpetuates cultural paranoia, which in and of itself, can lead to misdiagnoses.
The use and application of IOC is often based on the social fears and biases, not on sound recovery based psychosocial practices (Thomas &Sillen, 1972). For example, according to New York State Office of Mental Health’s Final Report on Kendra’s Law (2005), 63% of people being court-mandated under Kendra’s Law are identified as African American or Hispanic. So while less than one-half of New York State’s total population is comprised of African American and Hispanic individuals, two out of every three court-mandated orders have been levied at people of color (Finley &Pernell-Arnold, 1996). As demonstrated by this example, IOC laws are not being equally applied, and are disproportionately employed against persons of color. Is this to suggest that people of color are more violent than the general public? Or do people of color have a greater preponderance for mental illnesses than the general population? Or is it possible that mental health systems have completely and utterly failed people of color? The effects of stigma, social isolation and rejection, and discrimination must be addressed as violations of basic human rights, as well as barriers to recovery and self-determination.
3. Use of IOC Represents the Failure of the Public Mental Health System
USPRA believes Involuntary Outpatient Commitment represents a complete treatment failure and should not be a standard treatment practice. As such, USPRA seeks to identify and implement compassionate and person-centered means of reaching those persons that experience cognitive impairments and other symptoms of mental illness. USPRA is dedicated to the principle that people can be reached in ways that do not damage their sense of self-esteem or purpose in life. For example, early intervention teams have been successfully used to help individuals who are in the early stages of an acute episode of psychosis avoid hospitalization and remain in the community without the use of coercion (Malla &Norman, 2002; Melle, et al., 2004). With care and understanding, the benefits of psychiatric rehabilitation – notably services tailored to the needs, wants, and experiences of each person in recovery – can be better understood, and embraced through a process of collaboration, which is itself a hallmark of recovery. Psychiatric rehabilitation principles embrace the concepts of person centered and self-directed treatment planning and service delivery. In contrast, Involuntary Outpatient Commitment minimizes, if not eliminates, these integral approaches to treatment. Recovery is much less attractive when presented as force, coercion, and/or a criminal justice sanction; thus IOC has the net effect of driving people, especially people of color, away from recovery, rather than toward recovery.
USPRA believes people who are subjected to Involuntary Outpatient Commitment subsequently receive enhanced services only because of perceived regional liabilities. Ironically, many events that lead to IOC are due to one or more failures of the mental health system overall. Improvement of service coordination should already be the goal of a system, which can support its members without the use of force or coercion. On the other hand, prioritizing IOC above other services burdens other resources necessary in comprehensive mental health systems. For example, when housing is scarce, emphasizing IOC acts as a disincentive to recovery. It may result in persons in long-term recovery being denied an opportunity to utilize community resources for which they are appropriate and ideal candidates. As stated earlier, improvements in service delivery and coordination should already be a goal, one that is achievable in the absence of IOC.
Summary
The core values of the United States Psychiatric Rehabilitation Association state that all people have the capacity to learn and grow, and that a diagnosis of mental illness does not nullify this potential. USPRA believes that people have the right to make choices and live with the consequences of those choices, both good and bad. People in recovery from psychiatric disabilities will, with guidance and understanding, learn as much or more by making their own life choices compared to having those choices made for them. People in recovery understand and embrace a process of collaboration tailored to their individual needs, wants, and experiences. This is the foundation of self-determination and recovery. Involuntary Outpatient Commitment destroys this collaborative relationship by introducing force, coercion, and broken confidentiality, making recovery all the more difficult. It is antithetical to the idea of recovery to decide, in advance, that a person will act self-destructively; then, on the basis of that assumption, deny him/her the right of free choice. Psychiatric rehabilitation practitioners recognize the importance of developing partnerships with persons served so that the input and feedback can be exchanged in a systematic and on going basis (Rogers et. al., 2006). It is to this collaborative mission and the further promotion of self-determination and recovery that USPRA is firmly committed.
References
Bazelon Center for Mental Health Law (2006). State involuntary outpatient commitment laws. Washington, D.C. Retrieved December 13, 2006 from: http://www.bazelon.org/issues/commitment/moreresources/iocchartintro.html
Daniels, A., &Adams, N. (2006). From study to action: a strategic plan for transformation of mental health care. Retrieved December 13, 2006 from: www.healthcarechange.org
Finley, L. &Pernell-Arnold, A. (1996). Inoculation against discrimination and the ISMs. Unpublished Manuscript.
Malla, A. K. &Norman, R. M. G. (2002). Early intervention in schizophrenia and
related disorders: Advantages and pitfalls. Current Opinion in Psychiatry, 15, 17-23.
Melle, I., Larsen, T. K., Haahr, U., Friis, S., Johannessen, J. O., Opjordsmoen, S.,
Simonsen, E., Rund, B. R., Vaglum, P., McGlashan, T. (2004). Reducing the duration of untreated first-episode psychosis: Effects on clinical presentation. Archives of General Psychiatry, 61, 143-150.
Neutel, J. &Smith, D. (2003). Improving patient compliance: A major goal in the management of hypertension. Journal of Clinical Hypertension, (5)2: 127-132.
New York State Office of Mental Health (2005). Kendra’s law: final report on the status of assisted outpatient treatment. Retrieved December 13, 2006 from: http://www.omh.state.ny.us/omhweb/Kendra_web/finalreport/AOTFinal2005.pdf
Peterson, A., Takiya, L. &Finley, R. (2003). Meta-Analysis of trial of interventions to improve medication adherence. American Journal of Health-System Pharmacy, 60(7): 657-665.
Pumilia, C. (2002). Psychological impact of the physician-patient relationship on compliance: a case study and clinical strategies. Progress in Transplantation, (12)1: 6-10.
Rogers , J., Restrepo-Toro, M. E. &Gao, N. (2006). Diversity and Cultural Competence. In M. Salzer (ed). Psychiatric Rehabilitation Skills in Practice: A CPRP Preparation and Skills Workbook (387-435). Linthicum , MD : US Psychiatric Rehabilitation Association.
Schroy, P. (2002). Barriers to colorectal screening: Part 1 — patient noncompliance. Medscape General Medicine, 4(2): website.
The President’s New Freedom Commission on Mental Health (2003). Achieving
the Promise: Transforming Mental Health Care in America. Rockville, MD: DHHS Pub. No. SMA-03-3831.
Thomas, A. &Sillen, S. (1972). Racism and Psychiatry. New York, NY: Brunner/Mazel Publishing.
U.S. Department of Justice (2006). Bureau of Justice Statistics Special Report: Mental Health Problems of Prison and Jail Inmates. Retrieved December 13, 2006 from: http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf
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