New York has Kendra’s Law, named for a woman pushed in front of a train by a man with untreated schizophrenia. Laura’s Law in California was named for a college student working in a behavioral health clinic when a client shot and killed her.
Forty-four states have laws allowing for court-ordered outpatient treatment of certain people with mental illnesses, and many were inspired by acts of violence. Lawmakers in Connecticut, one of six states without a so-called outpatient commitment law, are now considering whether to adopt one in the wake of the shooting of 20 children and six educators at Newtown’s Sandy Hook Elementary School last month.
But the laws’ names and genesis could be misleading, according to experts, who say they’re really best viewed not as ways to stop extreme but rare acts of violence, but as attempts to address “revolving door” patients who have been in and out of hospitals and jails, resisting treatment and unable to remain stable in the community.
Such laws typically have weak enforcement powers, with little way to force someone to take medication or comply with treatment, experts say, although some say a court order itself seems to help some people accept treatment.
And whether the laws are used and effective depends in part on whether they’re accompanied by an increase in funding for mental health services, they say.
“It’s a good solution, but for a different problem than the problem of how do we make sure there are no more Newtown massacres,” said Dr. Paul S. Appelbaum, director of the Division of Law, Ethics and Psychiatry at the Columbia University Medical Center.
“Outpatient commitment is not going to prevent the rare acts of extreme violence that so galvanize everyone’s emotions,” he said. “Those events are extremely low frequency and frankly, not likely to be the sort of thing that the usual target population of outpatient commitment would engage in.”
In states that don’t increase funding for mental health services, “as a general rule, nothing changes,” Appelbaum said. But in states that do, data suggests that outpatient commitment laws are effective, he said.
Critics of outpatient commitment, including many people involved in Connecticut’s mental health system, take a different view, arguing that it can undermine efforts to get people to accept treatment voluntarily and drain resources from people who want services. Where outpatient commitment appears to produce better outcomes, they say, the real key was the additional resources spent on mental health services, not the court orders.
“You can spend millions and millions on a small, involuntary outpatient commitment program that is supposed to give the public, I think, a false sense of assurance that the problem has been solved,” said Harvey Rosenthal, executive director of the New York Association of Psychiatric Rehabilitation Services. “But the real answer, I think, is in redirecting the money we already have, which is often a lot of money, and getting it lined up to really be the most effective.”
Court-ordered treatment in other states
Outpatient commitment came up during the first meeting of the commission crafting a response to the Sandy Hook shooting, in the form of a question to Richard Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. Bonnie advised the panel that examined the 2007 shooting at Virginia Tech; the shooter, Seung-Hui Cho, had been subject to court-ordered outpatient treatment but never complied.
“The issue is, you have to have the resources,” Bonnie told the commission. “You can’t successfully implement mandatory outpatient treatment unless you begin to work on the gaps in the services system.”
The experiences of other states bear that out.
In California, there are no state funds to implement Laura’s Law. Only one county fully uses the law, and one other, Los Angeles County, has a small pilot program.
Under the statute, a person must be offered comprehensive services on a voluntary basis before being ordered to get treatment involuntarily. That creates another barrier, said Rusty Selix, executive director of the Mental Health Association of California. Because there are so many people who want mental health services and haven’t been able to get them, there’s little incentive for counties to put in the extra effort to provide services to those who don’t want them.
“They’re overwhelmed with people that want to get into those programs,” he said. “And when they find people who resist it, they just go on to the next person.”
New Jersey, meanwhile, adopted an outpatient commitment law in 2009. It was supposed to be implemented beginning in 2010.
But the state delayed it after officials cut funds for the community mental health system and failed to appropriate money to implement outpatient commitment. At the time, even without outpatient commitment, community mental health providers across the state had waiting lists for services, Kevin Martone, the state’s deputy human services commissioner, wrote in a 2010 memo.
“Tasking the existing community providers with the new responsibilities [involuntary outpatient commitment] demands, without an increase in funding, would have the effect of decreasing existing services provided as well as decreasing the number of existing individuals served by community providers,” he wrote. “As a consequence, each would be providing services to fewer individuals, and putting the individuals who will wait for services at greater risk of harm.”
Since then, the state has increased funding for voluntary mental health services, in part because of the closing of a state psychiatric hospital. And it began outpatient commitment last summer with $2 million to roll it out in six counties. A couple of dozen people have been subjected to it so far, said Roger Borichewski, assistant director of prevention, early intervention and community services for the state’s human services department.
It’s too soon to say what effect outpatient commitment has had, said Phillip Lubitz, associate director of the National Alliance of Mental Illness New Jersey. Concerns among some that mandated treatment would create problematic incentives for people unable to get voluntary services have not come to pass, he said, in part because the move toward outpatient commitment has been modest and the capacity of the voluntary system has increased.
“New Jersey’s done better than most states, I think, in funding those services,” he said. “With that said, there’s still scores of people who have unmet needs, particularly the people who I think outpatient commitment was really meant for.”
Is it the court order, or the services?
Advocates of outpatient commitment point to Kendra’s Law as a model, and lawmakers in New York recently voted to extend it as part of the gun and mental health legislation passed in response to the Newtown shooting.
The state has provided millions of dollars to fund additional treatment services since it began in 1999.
In that time, more than 10,000 people have been subject to outpatient commitment.
A 2005 report by the New York Office of Mental Health found that, in interviews, more than half of people subject to outpatient commitment said they felt angry or embarrassed by the experience. But 62 percent said that, “all things considered, being court-ordered into treatment has been a good thing for them.”
Was it the order itself, or the access to services?
Determining that is challenging, in part because there have been very few randomized studies.
As proof that the court order itself, and not just increased services, make a difference, Appelbaum pointed to a 2010 study of 181 people in New York who were either subject to outpatient commitment or who would have been but had instead signed agreements to receive treatment voluntarily.
Among people receiving court-ordered treatment, the odds of being arrested in a given month were nearly two-thirds lower than they were for people before the commitment or before the voluntary agreement. No such reduction existed for people who were receiving services voluntarily.
“The absence of a significant difference in odds of arrest for participants who were currently under a voluntary agreement, which also involves close oversight and intensive care services, may suggest that the court order conferred additional benefits not found with a voluntary agreement,” the study authors wrote.
They suggested that one reason the court order could make a difference in arrest rates was that police might be more likely to refer people in court-ordered treatment back to the mental health system rather than arresting them for “nuisance crimes.”
The enforcement paradox
Appelbaum said there’s a paradox about statutes like Kendra’s Law: They typically have very weak enforcement powers. In New York, a person who doesn’t comply with treatment can be brought to an emergency room for an evaluation. But unless he meets the criteria to be hospitalized involuntarily, he would have to be released. He couldn’t be forced to take medication, receive treatment or stop using drugs.
So how could outpatient commitment be effective if it can’t be enforced?
One theory, Appelbaum said, is that rather than committing a patient to the mental health system, it commits the system to the patient.
“It makes it more likely that the clinics that have responsibility for these patients, when they don’t show up for an appointment, will go out and find them and bring the medication along or make sure they come in for their physical and check up on whether they’re drinking again and offer them substance-abuse treatment,” he said. “The system becomes more dedicated to ensuring that they stick with care.”
Another hypothesis, he said, is that being ordered to receive treatment by a judge allows a patient to remain in denial about the need for care. Getting treatment isn’t an acknowledgement that I have a problem, the thinking goes, but I’m doing it because a judge is making me.
Rosenthal discounts the argument that outpatient commitment itself makes the difference.
“If you’re in a program that gets you to the front of the line for scarce resources and makes sure you get first in line for housing and case management and you get those services, yeah of course you’re going to do better,” he said. “I’m not sure it proves that the court order is the reason.”
A better approach, he and other critics of outpatient commitment say, is aggressive outreach. Rosenthal’s agency has a program in which peer wellness coaches and teams of care coordinators and nurses hit the streets and find people who had not been getting care and had been in and out of hospitals and emergency rooms. They return again and again. If a person is getting out of the hospital, they go with him, take him to 12-step meetings, make sure he has support.
“They promote hope, they make a relationship, they start where the person is,” he said. “They’re not trying to force somebody into a diagnosis and force medication on them.”
As an example, he said the approach helped one man with bipolar disorder, drug addiction and severe medical problems go from seven detoxes in one year to just one the next year, saving the state $30,000 in Medicaid funds.
“I actually have the same criticisms as the people that want Kendra’s Law, that we have a failed system that needs to be more accountable and responsive,” he said. “I just think their strategy is the wrong one.”
Follow Arielle Levin Becker on Twitter.