Assisted Outpatient Treatment

Kendra's Law is a New York State law concerning involuntary outpatient commitment and grants judges the authority to mandate people receiving mental health services to take psychiatric drugs, regularly undergo psychiatric treatment, or both.

NAMI-NYS Leader's Update
by Glenn Liebman, Past Executive Director

ROLE OF FAMILIES AND OTHERS WHO CAN PETITION THE COURTS

The importance of the roles of families in outpatient commitment is stressed throughout the legislation. The most important role for families in this legislation is their ability to petition for court ordered care for their loved ones. In having the ability to petition the court, the definition used for family is 'close family members.' The next section details individuals who would be eligible for outpatient treatment.

Other individuals who can petition the court are any person 18 years or older with whom the subject of the petition resides; the director of the hospital in which the individual is hospitalized; the director of any public charitable organization, agency or home providing mental health services to the subject of the petition; a qualified psychiatrist who is either supervising the treatment or treating the subject for mental illness; or the director of community services or his or her designee; and the parole or probation officer assigned to supervise the subject of the petition.

ELIGIBILITY FOR CRITERIA FOR OUTPATIENT TREATMENT

To be eligible for court ordered treatment, you have to meet the following criteria:

  • 18 Years or older.
  • Suffering from mental illness.
  • Patient is unlikely to survey in the community without supervision, based on a clinical determination.
  • The patient has a history of lack of compliance with treatment for mental illness that has: a) At least twice within the last thirty-six months been a significant factor in necessitating hospitalization, b) Resulted in one or more acts of serious violent behavior towards self or others or threats of, or attempts at, serious physical harm to self or others within the last 48 months.
  • The patient, as a result of his/her mental illness, is unlikely to voluntarily participate in the recommended treatment plan. It is likely that the patient will benefit from assisted outpatient treatment.
  • If the patient has executed a health care proxy, that any direction included in such proxy shall be taken into account by the court in determining a written treatment plan-but nothing shall preclude a person with a health care proxy from being subject to a petition.
THE PETITION PROCESS

Following are the criteria for petitioning the courts:

  • Provide facts that support the petitioner's beliefs that the subject meets each of the criterion (as described in the last section).
  • The petition is accompanied by either an affirmation or affidavit from a physician who shall not be the petitioner, stating that the physician has personally examined the subject no more than ten days prior to the submission of the petition; that he or she recommend assisted outpatient treatment for the subject of the petition and is willing to testify at the hearing; or they made appropriate but unsuccessful attempts to examine the subject, have reason to suspect that the subject meets the criteria for assisted treatment, and they are willing to examine the subject and testify at the hearing of the petition.
RIGHTS OF INDIVIDUALS IN THE PETITION PROCESS

  • The subject of the petition has the right to be represented by mental hygiene legal services, or other counsel at the expense of the subject of the petition, at all stages of the proceeding.
  • An individual making a false statement or providing false testimony in a petition or hearing is subject to criminal prosecution.
  • The patient, mental hygiene legal services, or any individual acting on the patient's behalf, may apply to stay, vacate or modify the order. Appeals may be filed in accordance with Section 9.35 of this article.
  • The subject of the petition shall be afforded an opportunity to present evidence, to call witnesses on behalf of the subject, and to cross-examine adverse witnesses.
COURT SYSTEM USED FOR PETITIONING

A petition for an order authorizing assisted outpatient treatment may be filed in the supreme or county court in which the subject of the petition is present or reasonably believed to be present.

HEARING CRITERIA

  • Upon receipt by the court of the petition, the court shall fix a date for the hearing at a time no later than three days from the date that the petition is received by the court (excluding weekends and holidays).
  • Adjournments shall be permitted only by good cause shown. In granting adjournments, the court shall consider the need for further examination by a physician or the potential need to provide assisted outpatient treatment expeditiously.
  • If the subject of the petition does not appear at the hearing and appropriate attempts to elicit attendance of the subject have failed, the court may conduct the hearing in such subject's absence.
  • If the subject of the petition has refused to be examined by a physician, the court may request the subject to consent to an examination by a physician appointed by the court.
  • If the subject of the petition does not consent and the court finds reasonable cause to believe the allegations are true, the court may order a law enforcement official to take the subject of the petition into custody and transport him or her to a hospital for examination by a physician. Retention of the subject of the petition under order shall not exceed twenty-four hours.
ROLE OF PHYSICIAN IN COURT ORDERED TREATMENT
  • The court shall not order assisted outpatient treatment unless an examining physician, who has personally examined the subject of the petition within the time period commencing ten days before the filing of the petition, testifies in person at the hearing.
  • A physician shall state the facts which support the allegation that the subject meets each of the criteria for assisted outpatient treatment and the treatment is the least restrictive alternative. If the assisted outpatient treatment includes medication, the physician's testimony shall describe the classes of medications which should be authorized.
  • The physician shall describe the beneficial and detrimental physical and mental effects of such medication, and shall recommend whether such medications should be self-administered or administered by authorized personnel.
  • The court shall not order assisted outpatient treatment unless an examining physician appointed by the appropriate director develops and provides to the court a proposed written treatment plan. The written treatment plan shall include case management services or assertive community treatment teams to provide care coordination.
  • The court shall not order assisted outpatient treatment unless a physician testifies to explain the written proposed treatment plan.
COURT FINDINGS UPHOLDING THE PETITIONERS
  • If after hearing the relevant evidence, the court finds that the subject of the petition meets criteria for assisted outpatient treatment, and there is no feasible less restrictive alternative, the court shall be authorized to order the subject to receive assisted outpatient treatment for an initial period not to exceed six months.
  • The court may not order treatment that has not been recommended by the examining physician and included in the written treatment plan for assisted outpatient treatment.
  • If the court finds that the subject of the petition meets criteria for outpatient assisted treatment and the court is not provided with a written treatment plan, the court shall order the director of community services to provide the court with such a plan.
  • The court may order the patient to self administer psychotropic drugs or accept the administration of such drugs by authorized personnel as part of an assisted outpatient treatment program.
  • If the director (not clear if this is hospital or county mental hygiene director) determines that the condition of such patient requires further outpatient treatment, the director shall apply, prior to the expiration of the period of assisted outpatient treatment ordered by the court, for a second or subsequent order authorizing continued assisted outpatient treatment for a period not to exceed one year from the date of the order.
FAILURE TO COMPLY WITH THE COURT ORDER
  • In the clinical judgment of a physician, if the patient has failed or has refused to comply with the treatment ordered by the court (and in the physician's judgment, efforts were made to solicit compliance), then the patient may be directed to an appropriate hospital for an examination to determine if such person has a mental illness for which hospitalization is necessary.
  • If the patient fails to take medication required by the court order or refuses a blood test, urinalysis or alcohol or drug tests that are required by the order, then the physician may consider such refusal when determining whether hospitalization is necessary.
  • Upon physician's request, the county mental hygiene director may direct peace officers, police officers or sheriff's department to take custody and transport any such person to the hospital operating the assisted outpatient treatment program or to any hospital authorized by the director of community services to receive such persons.
  • An individual may be retained up to seventy-two hours to permit a physician to determine whether such person has a mental illness and is in need of involuntary care and treatment in a hospital.
RESPONSIBILITY FOR MONITORING AND OVERSIGHT OF ASSISTED OUTPATIENT TREATMENT

The Commissioner of the Office of Mental Health shall appoint program coordinators of assisted outpatient treatment who shall be responsible for oversight and monitoring of outpatient treatment programs.

The directors of mental hygiene services in each county will work in conjunction with program coordinators to coordinate the implementation of assisted outpatient treatment programs.

The responsibilities of the program coordinator include:

a) assurance that each assisted outpatient receive the treatment provided in the court order,
b) that existing services located in the assisted outpatient's community are utilized whenever practicable,
c) that a case manager or assertive community treatment team is designated for each assisted outpatient,
d) that a mechanism exist for case manager or ACT team to report the assisted outpatient's lack of compliance with treatment and,
e) that outpatient services are delivered in a timely manner. If it is found that services are not being delivered in a timely manner, then the program coordinator shall require the director of the outpatient program to immediately commence corrective action.

NAMI-NYS Helpline
(518) 462-2000
1-800-950-3228 - NY Only
helpline@naminys.org

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