This report describes the experience of the Bellevue Hospital Center (Bellevue) Department of Psychiatry in implementing and administering the New York State pilot program in “Involuntary Outpatient Treatment of Mentally Ill Persons.” It represents the collective work of scores of Bellevue clinicians. It also reflects the participation and cooperation of many, many mental health consumers and providers, government officials, family members and advocates.

Although outpatient civil commitment was new to New York in 1995, it has existed for many years in other jurisdictions, and this report will discuss its historical context. This report will then provide a program description, a discussion of the program experience and findings, and a statistical summary covering the first three and one half years. Because the Policy Research Associates Final Report on the pilot was published on December 4, 1998, this report will offer Bellevue’s observations about it. Bellevue will also offer conclusions regarding its experience in operating the pilot program.

I. BACKGROUND

HOSPITALS AND COMMITMENT

During America’s colonial period individuals with serious and persistent mental illness were left to wander from town to town or lived in almshouses, jails, and private homes, where they often were treated poorly and worse. In the early nineteenth century a number of small, private hospitals were built to care for individuals with mental illness. These hospitals were founded on both scientific and humanitarian principles. These “asylums” used traditional medical treatments, but also promoted “moral treatment” which emphasized therapeutic and vocational activities, exercise and non-restraint.

Admission to the hospitals was almost always initiated by family members and was dependent on their ability to pay for the care. Patients who were so ill that they required hospitalization were presumed to lack the capacity to make treatment decisions and were often taken to and treated in the hospital involuntarily. A physician’s certification of the patient’s need for treatment was adequate for commitment. The government was not at all involved in the process.

The early hospitals reported excellent outcomes, and were perceived as being highly successful. As a result, a movement arose which urged the states to build public asylums to care for those who were mentally ill and indigent; it essentially advocated for the right of this population to treatment. In 1833, Massachusetts built the Worcester State Hospital, which soon became a model for other states because its success was reported to be similar to that of the older hospitals. Thirty years later, there were 62 American psychiatric hospitals, most of which were state supported.

Such extensive state involvement in the care of individuals with mental illness brought the need for legislation regarding commitment and a degree of governmental control. When the family agreed to pay for care, commitment to a public institution generally required only medical certification, just as in a private asylum. However, when the government was required to pay for the care, judges were required to certify an individual’s need for psychiatric treatment and judicial commitment processes were put in place throughout the country.

There were two legal theories that supported the judge’s power to commit a person to a hospital. The first was police power: this principle asserts that the state may intervene if an individual is dangerous. The second theory was parens patriae: this notion derives from Roman and English law, and in American law asserts that the state should care for those who cannot care for themselves. Psychiatric hospitals were viewed to be optimal for the care of individuals with mental illness, and judges were permitted to commit those individuals because they were in need of treatment. Psychiatric hospitals were explicitly developed as a therapeutic alternative to poor care, neglect and abuse in the community.

There had been allegations of unwarranted and improper commitments since the first asylums opened, but the criticisms sharply increased in the late nineteenth century. This ultimately led to commitment law reform which was intended to protect patients’ rights. The safeguards that were put into place to protect patients who were involuntarily hospitalized, such as jury trials and formal notification, were usually borrowed from the criminal justice system. Furthermore, the private hospitals came under governmental regulation, and mechanisms to allow for voluntary hospitalization were put into place for the first time.

Over the following decades psychiatric hospitals were built in even larger numbers and the state became responsible for caring for hundreds of thousands of individuals with serious and persistent mental illness. There were periodic modifications to the procedures whereby individuals could be civilly committed to psychiatric hospitals. When public attention focused on the obstacles to rapid hospitalization and treatment of the mentally ill, there was a tendency to diminish the criminal- style protections. On the other hand, when reports of abuses of civil liberties, especially within hospitals, were widely publicized, the government provided greater oversight of the institutions and commitment procedures. However, the traditional principles underlying civil commitment, i.e., police power and need for treatment, remained the basis of the law.

DEINSTITUTIONALIZATION AND COMMUNITY CARE

The post World War II period saw a profound shift in thinking regarding the chronically mentally ill. This was the result of a number of factors, including the introduction of new psychiatric medications, criticisms of traditional institutional psychiatry, and an increased emphasis on civil liberties in American courts. These forces converged in the new “community psychiatry,” which asserted that many chronic psychiatric patients could leave large institutions and return to live safely in their communities. This was the basis of the social policy of deinstitutionalization, which crystallized during the Kennedy Administration. Deinstitutionalization was to be done in tandem with the creation of community mental health centers, where patients would receive their medications and other needed therapies.

As deinstitutionalization was put into effect, the first major changes in commitment laws in over a century were being passed and implemented. Courts were ruling that a patient must be dangerous to self or others to warrant involuntary commitment to a hospital. The traditional standard of need for treatment was no longer enough to allow the state to restrict an individual’s liberty in an institution; it was believed that treatment could be received in the community.

The effectiveness of deinstitutionalization was predicated both on the availability of effective treatment in the community and on the willingness of patients to receive the treatment voluntarily. As a result of deinstitutionalization, the majority of patients were able to access and were willing to accept treatment and did well in the community.

In many cases, however, the assumptions underlying deinstitutionalization were incorrect. Many of the community mental health centers were never funded as originally planned, and even those which became operational usually did not focus on providing services to seriously and persistently mentally ill individuals. Some individuals objected to or could not tolerate side effects to medications or other aspects of community treatment. And some individuals had negative experiences with the mental health system which led to rejecting further involvement.

In a many other individuals, however, the reason for refusing available treatment and services was mental illness itself. Some former inpatients lacked the capacity to seek treatment or rejected treatment due to their symptoms once they were discharged to the community. They had hallucinations, delusions, paranoia, disturbances of thinking and mood, and problems with motivation, concentration and functioning that interfered with their ability to understand the nature of their illness and their need for treatment.

The problems of the thousands of deinstitutionalized patients who either had no access to or refused outpatient treatment soon became apparent throughout society. Many of these individuals suffered significant functional deterioration in the community. Changes in housing availability and policies contributed to the fact that large numbers of seriously mentally ill individuals becoming homeless.

By the late 1970's, the problems of deinstitutionalization and stricter commitment laws had also resulted in a new phenomenon known as the “revolving door syndrome.” This occurred both among formerly institutionalized patients as well as in young chronic patients who never had spent long periods in hospitals. These patients could often be treated effectively and stabilized in the hospital. However, upon discharge they either could not access or became noncompliant with outpatient treatment, and rapidly deteriorated to the point of becoming dangerous and requiring involuntary hospitalization.

A variety of clinical interventions have been developed in response to the revolving door syndrome. These interventions are intended to improve compliance with outpatient psychiatric treatment and reduce rehospitalization. They include various kinds of housing programs which provide on site supervision and services, such as community residences, serviced single room occupancy hotels, apartment programs and adult homes. They also include various case management and assertive community treatment programs, which provide outreach services in the community on a consistent, continuous basis, as well as providing support and crisis intervention.

OUTPATIENT COMMITMENT

While these clinical programs were being put into place, a number of legal interventions were developed to insure the delivery of the services and to promote compliance when patients continued to refuse treatment due to their illness, notwithstanding the availability of appropriate clinical care. Outpatient commitment is one such intervention which was specifically developed to address the revolving door syndrome and to help patients consistently access community services and treatment. Outpatient commitment occurs when a judge formally orders a patient to comply with a plan for outpatient psychiatric treatment and services in the community in order to prevent the deterioration that predictably results. Outpatient commitment is intended to provide appropriate, necessary psychiatric treatment in the least restrictive setting.

Outpatient commitment became increasingly widespread in the 1970's and ‘80's. It is now available in 35 states and the District of Columbia. It is important to note that there are wide variations among the different statutes, and that outpatient commitment does not exist in any one form. In some states outpatient commitment may be permitted only after a period of inpatient hospitalization; in others it may be initiated on an outpatient basis. The standard for outpatient commitment may require a specific prior history of involuntary treatment or it may be based only on certain conditions of the individual’s illness and mental status. The standard for outpatient commitment may be similar to or different from the jurisdiction’s standard for inpatient admission. Finally, the manner of handling noncompliance in the community varies; the law may allow rehospitalization, or require another hearing, or provide no consequences for noncompliance at all. Some states permit court ordered outpatient medication and some do not.

In 1990, Dr. Jeffrey Geller published a paper titled “Clinical Guidelines for the Use of Involuntary Outpatient Treatment”[1] which has been widely accepted and has guided the development of the New York pilot. First, Dr. Geller addressed the appropriate selection of patients for outpatient commitment. The patient must have a history of failing in the community and must currently express an interest in living in the community. The patient must have that degree of competence necessary to understand and abide by the stipulations of the court order. Finally, the patient must not be dangerous to self or others when complying with the ordered treatment.

Dr. Geller’s guidelines also define a set of requirements for the service system, which are necessary to provide for effective outpatient commitment. The treatments being ordered must have demonstrated efficacy when used properly with that individual patient. The outpatient system must be capable of delivering the necessary outpatient services, which must be sufficient for the patient’s needs and necessary to sustain community tenure. The psychiatric outpatient system must be capable and willing to provide, monitor and enforce compliance with the ordered treatment. And, finally, the public sector inpatient system must support the outpatient system’s participation in the provision of involuntary community treatment.

Much of the research over the past twenty years has indicated that outpatient commitment is effective in reducing the rate of hospitalization, the length of stay of hospitalizations, and dangerousness in the community. Most of the research is only suggestive because the studies have had small numbers of patients, short follow-up periods and a lack of controls or nonequivalent controls. Also, many outpatient commitment programs were put into place with enhanced community services, and the study designs did not distinguish the effects of the legal interventions from those of the clinical services. Nonetheless, the research has been consistent with much clinical experience that has found outpatient commitment to help patients remain in community treatment and out of the hospital.

OUTPATIENT COMMITMENT IN NEW YORK

While most states have experimented with and implemented some form of outpatient commitment over the past twenty years, a number of others have had no provision for outpatient commitment, and that had been the case in New York. Outpatient commitment was first proposed in New York after Project HELP[2] caused the review of commitment laws and firmly established the precedent that individuals who were so gravely disabled as to be dangerous to themselves could, indeed, be involuntarily hospitalized. Outpatient commitment was first proposed in 1989 as the next logical step in using legal mechanisms to assist in insuring that the gains made by these patients in the hospital could be sustained in the community.

Outpatient commitment did not become a reality, however, until New York State adopted the Community Mental Health Resources Act, more commonly known as the Community Reinvestment Law, in 1993. This legislation continued the state’s longstanding policy of reducing beds at state psychiatric centers, but required that the money saved be invested in a wide array of community-based services for individuals with serious and persistent mental illness. Soon thereafter, the New York State Legislature conducted hearings which found that some individuals who require mental health treatment and services to survive safely in the community “frequently reject the care and treatment offered to them on a voluntary basis and decompensate to the point of requiring repeated psychiatric hospitalizations.” The Legislature also found that a number of other jurisdictions, including Illinois, Michigan, Pennsylvania, North Carolina, Vermont, Hawaii and Washington, D.C., permit outpatient civil commitment.

Section 9.61 was added to the Mental Hygiene Law in 1994. It called for a three year pilot program to be funded through the Reinvestment Law and operated out of one hospital in New York City. It also required an independent research study to determine the program’s effectiveness in preventing rehospitalization and improving the patients’ quality of life. The legislation also required that the study assess participant satisfaction regarding outpatient commitment.

In late 1994, the New York City Department of Mental Health, Mental Retardation and Alcoholism Services (DMH) contracted with Bellevue to implement the pilot program. Bellevue was chosen because of its long commitment to treating individuals with psychiatric disabilities, its wide scope of mental health programs and its experience in handling forensic mental health issues. In the spring of 1995, DMH contracted with Policy Research Associates (PRA) to conduct the research study. In June 1997, the law was amended to extend the pilot program and the research study for one year. The Bellevue Outpatient Commitment Program (OCP) is authorized by the legislation to operate through June 1999.

II. PROGRAM DESCRIPTION

PROGRAM PLANNING AND OVERSIGHT

Bellevue began preparing to operate the OCP during the first months of 1995. In addition, a series of planning and oversight meetings were held during that period, which included representatives from Bellevue, New York City Health and Hospitals Corporation (HHC), DMH and the New York State Office of Mental Health (SOMH). These were called “Umbrella Committee” meetings and were intended to guide the enormously complex process of interpreting and implementing a new mental health law and program. The Umbrella Committee became responsible for negotiating and finalizing a range of policy decisions that were made during the planning process. After PRA joined the project, it also participated in the Umbrella Committee.

The OCP began operating in July 1995. The Umbrella Committee continued to meet after operations commenced, because important elements of the law were not yet in place, and because policy questions continued to arise as the program took shape. The Umbrella Committee has continued to meet throughout the duration of the pilot program.

THE OCP COORDINATING TEAM

The Bellevue OCP is staffed by an interdisciplinary Coordinating Team (CT). The CT has been responsible for implementing the clinical program and insuring that all of the elements of the law have been effectuated. The CT performs a variety of clinical, administrative and medico-legal functions. In addition, the CT was responsible for working closely with PRA to provide access to patients, medical records and clinical and administrative meetings.

PATIENT ELIGIBILITY

In order to be eligible for the OCP, individuals must meet all of the criteria set forth in Section 9.61. These criteria include that:

“(I) the patient is eighteen years of age or older;

“(ii) the patient is suffering from a mental illness;

“(iii) the patient is incapable of surviving safely in the community without supervision, based on a clinical determination;

“(iv) the patient is hospitalized at [Bellevue] . . . or in the case of an application for an additional period of treatment, the patient is currently receiving involuntary outpatient treatment;

“(v) the patient has a history of lack of compliance with treatment that has necessitated involuntary hospitalization at least twice within the last eighteen months;

“(vi) the patient is, as a result of his or her mental illness, unlikely to voluntarily participate in the recommended treatment pursuant to the treatment plan;

“(vii) in view of the patient’s treatment history and current behavior, the patient is in need of involuntary outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others. . .;

“(viii) it is likely that the patient will benefit from involuntary outpatient treatment. . . .”

REFERRAL PROCESS

A referral to the OCP must indicate that the patient meets all of the criteria stated above. Any psychiatrist attending at the Bellevue Comprehensive Psychiatric Emergency Program (CPEP) or on the Bellevue inpatient service may refer a patient to the OCP. Once a referral form is received, CT staff verify that the patient meets the eligibility criteria, which requires the review of medical and legal records, and often requires obtaining information from other hospitals. CT staff then screen eligible patients and serve patients who are clinically appropriate with notice that they are being considered for the OCP. During the screening, patients are encouraged to actively participate in the development of their community treatment plans. Patients are also asked if they would like to have a family member or friend formally notified, and involved in the development of the treatment plan.

DISCHARGE PLANNING

An OCP candidate’s inpatient treatment team is responsible for developing the comprehensive discharge plan, as is the case for any other psychiatric inpatient. CT staff provide ongoing consultation and assistance in developing optimal outpatient plans for these patients. Each treatment plan is individually tailored to achieve the best fit of consumer and services, and to maximize consumer choice and the likelihood of compliance and successful outcomes. This process takes into account supports and resources that are already in place in the community, the patient’s choices and preferences for housing and services, the patient’s past history and current clinical needs, and the availability of services. The CT typically follows between twenty and forty patients on Bellevue’s adult inpatient psychiatric units at any one time.

OUTPATIENT COMMITMENT ORDERS

Section 9.61 provides that the court may order a patient to comply with outpatient mental health treatment and services for a period of up to 180 days. Additional court orders for up to 180 days at a time may subsequently be requested.

Section 9.61 defines “involuntary outpatient treatment” as any of the following categories of service which have been ordered by the court:

1) medication

2) individual or group therapy

3) day or partial day programming activities

4) services and training, including education and vocational activities

5) supervision of living arrangements

6) intensive case management services

7) and “any other services within the local plan prescribed to treat the person’s mental illness and to assist the person in living and functioning in the community, or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in the need for hospitalization.”

MEDICATION

Section 9.61 provides that the court may order medication as a category of service only if specific criteria are met. In addition to demonstrating the patient’s eligibility for outpatient commitment, the hospital must show by clear and convincing evidence that:

1) “the patient lacks the capacity to make a treatment decision as a result of mental illness;”

and

2) “the proposed treatment is narrowly tailored to give substantive effect to the patient’s liberty interest in refusing medication, taking into consideration all relevant circumstances, including the patient’s best interests, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatment.”

A patient’s treating physician must complete an application to the court verifying the above and indicating the type and amount of each psychotropic medication being requested. A second physician must then evaluate the patient, with the Mental Hygiene Legal Service (MHLS) present, if requested, to affirm that all of the criteria are met. The Director of Psychiatry or his Designee must review the request before it becomes part of the hospital’s outpatient commitment application.

TREATMENT AND SERVICES

Because appropriate clinical services are the basis of good care, patients in the OCP must have some form of psychiatric treatment, housing, and case management included in their discharge plans. A discharge plan is complete when providers have been identified for each and every service that has been included on the treatment plan. Because Section 9.61 states that the OCP must be “willing and able to provide the involuntary outpatient treatment ordered,” providers must formally accept patients in order to be included in completed discharge plans.

Individual, group and day treatment are provided by many different hospital and community based agencies throughout New York City. In addition, the Bellevue POWER day treatment program was developed in conjunction with the OCP to work with very ill patients who have histories of noncompliance and substance abuse, and for whom more traditional programs are not appropriate.

Supported and supervised housing programs are available in many parts of New York City; they provide varying levels of structure, monitoring and outreach to clients. Supervision of living arrangement may be ordered in conjunction with community residences, supervised single room occupancy hotel, apartment programs and adult homes. Transitional living communities (TLC) are shelter-based programs which provide both housing and treatment services on site to seriously mentally ill patients who are also homeless; their goal is to help patients achieve psychiatric stability and to find permanent housing in the community.

Case management provides linkage to and coordination of services, including housing, benefits, psychiatric and medical treatment, and rehabilitation services. Case managers also provide outreach, support, therapeutic activities and crisis intervention services. In New York State, supportive case management (SCM) typically provides two meetings per month, while intensive case management (ICM) provides four meetings per month. Assertive community treatment (ACT) teams provide a full range of case management, treatment and rehabilitation services on an outreach basis in the community; they typically consist of a psychiatrist, a nurse, a social worker, a substance abuse counselor, a social work assistant and a peer specialist. Intensive case management, supportive case management and assertive community treatment are all ordered as categories of service on outpatient commitment orders.

NOTICE AND HEARINGS

When there is a plan to request an outpatient commitment order, the CT serves the patient and MHLS with written notice. The patient may also choose to have a relative or friend notified. Separate notice is served for requests for medication orders. Once a formal Order to Show Cause is generated, the patient is notified by a process server of the scheduled court date. Outpatient commitment hearings are held one day each week in the courtroom on the Bellevue campus. In order to issue an outpatient commitment order, the court must find by clear and convincing evidence that “the proposed treatment is the least restrictive treatment appropriate and feasible for the patient.”

The court may only order categories of service and medications which have been included in the OCP treatment plan. Since an outpatient commitment order requires a patient to comply with categories of service, not with individual providers, the court order lists categories of service, while the treatment plan lists the specific providers. Patients have a right to be represented at the hearings, and MHLS is responsible for providing such representation. The patient can also choose to retain a private attorney.

Section 9.61 provides patients for whom outpatient commitment is ordered with the right to appeal. A court-ordered patient also has the right to apply for an order to stay, vacate or modify an order for psychotropic medication. It is also possible to modify outpatient commitment orders once they are in effect. Additions or deletions of categories of service from an outpatient commitment order, and changes in a medication order without the patient’s consent must be brought before the court.

Changes of provider within a category of service do not require court hearings. Therefore, an outpatient care plan may be changed at any time as long as there are providers for each category of service in the order and any necessary court approval is obtained.

OUTPATIENT CARE

After the court issues an outpatient commitment order, the patient is discharged to the care of the outpatient providers included in the OCP treatment plan. Outpatient providers have responsibility for providing ongoing treatment and services to their court-ordered patients according to the standards of care of their organizations and agencies.

The CT is available to assist with any and all aspects of patient care, and remains in regular contact with all providers to insure that services remain coordinated and appropriate. In addition, when patients leave or are discharged from clinical programs, the CT works actively to insure that patients have access to other appropriate services, so that they may remain compliant with community treatment. In some instances, the CT provides direct psychiatric services, which insures that patients always have access to medication and other needed medical treatments. The CT follows patients as long as an outpatient commitment order is in effect.

NONCOMPLIANCE

Outpatient providers are responsible for assessing compliance with treatment and services for their OCP patients. The CT provides assistance in evaluating compliance and re-assessing outpatient care plans. The CT also provides ongoing consultation regarding appropriate clinical interventions for noncompliance. Furthermore, when outpatient providers have discharged patients because they are not utilizing services, the CT is responsible for continued outreach throughout the duration of the court order.

Noncompliance is not, in and of itself, grounds for hospital re-admission under Section 9.61. Patients may only be admitted to a hospital if they meet the appropriate legal standard for admission. The law does, however, provide a mechanism for facilitating an appropriate evaluation. It states that if an examining physician determines that a patient under court order has been noncompliant and may meet admission criteria, that physician may contact the Bellevue Director of Psychiatry or his Designee. Such individual may then direct the New York City Sheriff’s Office to transport the patient to Bellevue for evaluation for admission.

The law provides a second possible consequence of noncompliance for patients with outpatient medication orders. If an examining physician determines that a patient is noncompliant with medication, and efforts have been made to solicit compliance, the medication specified on the court order may be administered over the patient’s objection. This may be done according to the “Guidelines for Administration of Medication to Patients Who Fail to Comply with Court Ordered Medication” which have been issued by the President of HHC, in consultation with SOMH. These “Medication Guidelines” may be found in Appendix A.

It is significant that the Medication Guidelines require that the forcible administration of medication to a refusing patient may only be done safely in a hospital. However, the statute does not provide for the transport of patients to the hospital explicitly for this purpose.

It is important to note that Section 9.61 explicitly states that “failure to comply with an order of involuntary outpatient commitment shall not be grounds for involuntary civil commitment or a finding of contempt of court.” No aspect of Section 9.61 involves the criminal courts or the criminal justice system.

It is ultimately the responsibility of the CT to attempt to insure that patients have access to services and are in compliance with them, as outlined in the court order. Within that framework, however, there is a broad range of flexibility to allow each individual situation to be assessed by clinicians in a clinical context, and to emphasize the preservation of therapeutic relationships and to maximize consumer choice. Noncompliance is a complex phenomenon, which may have many causes, and which must be assessed on an ongoing basis taking all factors into consideration. Outpatient commitment orders permit the CT to do extensive outreach and follow up, and to emphasize to patients the necessity and value of staying in treatment in the community.

ADDITIONAL PERIODS OF OUTPATIENT COMMITMENT

Section 9.61 provides that the hospital may apply for extensions of a patient’s outpatient commitment order if the patient’s condition requires it. Each additional outpatient commitment order may be for a period of up to 180 days. Patients have all of the same rights regarding the renewal request and hearing process as they do when outpatient commitment orders are initiated.

RESEARCH PARTICIPATION

During the first six months of operation, all patients enrolled as OCP candidates were brought to court for outpatient commitment orders, as per the treating physician’s request, if and when comprehensive discharge plans were completed.

The PRA research study formally began in January 1996. Patients were recruited into the PRA study from January 1996 through February 1998. The outcome study compared patients who received court orders with those who received enhanced, coordinated clinical services without court orders. The goal of the study was to determine the effect of the court order on community tenure of mentally ill individuals whose noncompliance had previously resulted in involuntary hospitalization.

From January 1996 through February 1998, all patients who became candidates for the OCP were referred to PRA staff. The PRA team then assessed the patients and attempted to gain informed consent from those were thought to be appropriate for the study. Patients who did not consent or were not chosen to participate in the research were brought to court for outpatient commitment orders; all of those patients are followed by the CT for the duration for the court order. Patients who PRA found appropriate and then consented to participate in the study were randomly assigned by PRA into two groups: 50% were brought to court for outpatient commitment orders and 50% did not go to court, and thus served as “controls” in the study.

Patients in the control group were discharged to the care of the outpatient providers included in their discharge plans, just like the patients with court orders. The CT follows control patients for one year after discharge from the referring inpatient hospitalization. In these cases the CT also coordinates and monitors services, and attempts to insure that patients continue to have access to needed services. The CT has authority to do extensive outreach, but there is no requirement that the patient complies with the services.

Since March 1998, all OCP candidates have been brought to court for outpatient commitment orders, as per the treating physician’s request, if and when a comprehensive discharge plan is completed.

III. PROGRAM DEVELOPMENT AND FINDINGS

PROGRAM IMPLEMENTATION

The Bellevue OCP was developed with the view that it is a clinical program which uses a legal intervention to improve the lives of patients. This view is consistent with Section 9.61 as well as with the extensive literature on outpatient commitment (see Selected Bibliography). The implementation has been especially challenging because all of the clinical and legal documents, procedures and interventions had to be newly developed. In addition, since the OCP is a pilot which was being independently studied, it also required close collaboration with the PRA team, and the study requirements significantly affected the growth and development of the pilot in many ways. The development of the Bellevue OCP would not have been possible without the support and cooperation of HHC, DMH and SOMH. The model of ongoing oversight, dialogue, and assistance that existed for this project from the early planning phase enabled such a complex and highly scrutinized enterprise to proceed as smoothly as it did. The OCP was viewed as an opportunity for the entire mental health community to learn about the potential value of outpatient commitment in New York as well as the barriers to its optimum implementation.

Because the program was operated out of only one site in New York City, most consumers, providers and family members were unfamiliar with its theory and practice. A massive, ongoing educational program was required to implement the program at Bellevue and in the community. Thus, the pilot phase had many unique conditions, which must be appreciated in assessing the potential benefits of outpatient commitment in New York.

STAFFING

The CT originally consisted of a part-time ( twenty-five hours per week) Director, who is a psychiatrist; a full-time Coordinating Manager from Psychiatry Administration; a part-time (two days per week) attorney; and a secretary.

The first Coordinating Manager left the OCP in December 1995; since then the Coordinating Manager has been a social worker. As the program developed, the service needs of the growing number of patients increased, and the PRA research created new tasks and functions for the CT. As a result, a full-time staff social worker position was added to the CT in November 1996.

The CT’s first attorney resigned in February 1996, but continued to represent the hospital at the weekly 9.61 hearings. An attorney from HHC performed many of the program’s other legal functions until a new part-time (one day per week) attorney was hired for the CT in August 1997.

A part-time (four hours per week) psychiatrist was made available to the CT in the spring of 1996, and continued working with the CT through June 1997. A part-time (seven hours per week) psychiatrist position was added to the CT in July 1998. The CT’s ability to provide direct psychiatric treatment insures that all OCP patients always have access to medical assessment and medication.

ELIGIBILITY DETERMINATION

One major function performed by the CT is verifying patient eligibility for the OCP. While CPEP and inpatient psychiatrists initiate all referrals, the CT is sometimes required to obtain additional information and perform further clinical assessments to insure that the patient is appropriate for the OCP. In assessing eligibility, the CT uses information from medical records as well as from patients, family members and clinicians.

In an effort to understand outpatient commitment in its larger context, the OCP reviewed eligibility criteria from other jurisdictions. Appendix C summarizes different state approaches to outpatient commitment eligibility. The following describes the experience of the pilot program in relation to the Section 9.61 eligibility criteria.

1. Patients must suffer from a mental illness in order to be eligible for the OCP.

Almost all patients who have been referred to the OCP suffer from a severe psychotic disorder. Approximately 90% of referred patients have diagnoses of schizophrenia, schizoaffective disorder, or psychotic disorder not otherwise specified. Approximately 10% of referred patients have had diagnoses of bipolar affective disorder or depression. Approximately half of all patients referred to the OCP also have substance abuse disorders, which generally involves alcohol, cocaine, and/or marijuana. Patients with substance dependence disorders and no other major mental illness have been referred to the OCP on a few occasions; although they have been found eligible by diagnosis, none of these patients has ever been enrolled in the program.

2. Section 9.61 provides that in order to be eligible, “the patient is incapable of surviving safely in the community without supervision, based on a clinical determination.”

Patients referred to the OCP have significant histories of psychotic thinking and behavior and poor compliance with outpatient care which has resulted in serious impairment in functioning. Eligible patients have clinical histories which indicate that they require treatment and services to live safely in the community. Without such care, which usually includes psychotropic medication, these patients often become dangerous to themselves and/or others and require hospitalization. Furthermore, almost half of all patients referred to the OCP are homeless.

3. A patient must be hospitalized at Bellevue in order to be initially eligible for the OCP.

Bellevue, HHC and DMH agreed at the project’s outset that the transfer of patients from other hospitals to Bellevue for the sole purpose of participation in the OCP was not routinely feasible during the pilot. As community awareness of, and familiarity with, outpatient commitment grew, the CT received many requests for assistance with obtaining outpatient commitment orders from providers and family members. Over the course of the pilot it was possible, on a few occasions, to transfer patients from other facilities to Bellevue to participate in the OCP.

Throughout the course of the pilot, providers and family members inquired about referring individuals who were residing in the community to the OCP. They expressed the desire to use outpatient commitment as a tool to help prevent further decompensation and hospitalization. They also often stated that outpatient commitment should be available to patients in the community who may not have been hospitalized recently but who otherwise meet the criteria for outpatient commitment.

As a matter of policy, Bellevue chose to limit eligibility to patients who are discharged to reside within the five boroughs of New York City. This was determined to be necessary to insure that the CT could provide adequate access to, and coordination and monitoring of, services. However, over the course of the pilot, a number of patients have been followed while being treated at Rockland Psychiatric Center and its residential outpatient programs in Orangeburg, New York.

4. Section 9.61 requires that a patient must have “a history of lack of compliance with treatment that has necessitated involuntary hospitalization at least twice within the last eighteen months.”

The CT is often required to obtain medical records from other institutions in order to verify both the elements of noncompliance and involuntary hospitalization for past admissions. Over the course of the pilot this process has been found to be labor intensive because patients have received treatment from many providers, and their policies regarding release of information vary considerably. Hospital discharge summaries and other clinical materials often do not contain information regarding legal status. The CT has also found that in many instances patients who are brought to the hospital involuntarily may nonetheless be admitted to the hospital on a voluntary status. In addition, the CT has observed that patients are often unable to recollect information regarding the legal status and circumstances surrounding previous hospitalizations, and also often report information which is inconsistent with the medical records.

Clinical judgment is required for the determination that noncompliance has resulted in involuntary hospitalization. Over the course of the pilot, patients with a wide range of clinical histories have been referred to the OCP. Some patients have rejected all community services, while others have only refused one category of service, such as medication, day treatment or supervision of living arrangements. Some patients stopped treatment primarily when they abused substances. Only individuals who have had access to services and have then refused or rejected treatment have been found to be appropriate for the OCP. Patients who become ill and are involuntarily hospitalized notwithstanding compliance with treatment have been found to be ineligible for outpatient commitment.

5. Section 9.61 requires that the patient, as a result of mental illness, be “unlikely to voluntarily participate in the recommended treatment.” The law also requires that the patient be likely to benefit from outpatient commitment, and be in need of it “in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others.”

Here the law clearly requires the referring physician to make predictions regarding a patient’s post-hospital clinical course, and the value of outpatient commitment for relapse prevention. This prognosis is based on discussions with the patient, family members and service providers, as well as a review of the medical records. The court ultimately must find that the referring physician’s assessment is accurate in order for a patient to be ordered to comply with outpatient care.

REFERRAL PROCESS

During the first six months of the OCP, before the PRA research project began, approximately ten patients per month were referred to the CT. Patients were referred from the inpatient units by physicians who had an opportunity to fully evaluate the patient and the care plan for the community. The CT encouraged physicians to evaluate all patients who met the OCP eligibility criteria for referral, and there was no exclusion by any other criteria.

The initiation of the PRA research study in January 1996 led to the need for many more referrals to the OCP. It is important to note that once the PRA study began, physicians were explicitly making referrals for the study, not necessarily for outpatient commitment, since patients who were found appropriate for and consented to the study would only have a 50% chance of being brought to court for an outpatient commitment order. PRA indicated that the study would require 150 subjects (including patients in the court and control groups) for the research to have statistical significance.

Given the limited time frame for the pilot project, it became necessary for the CT to emphasize recruitment of OCP candidates. This was accomplished primarily in two ways. First, the Bellevue Department of Psychiatry placed a strong emphasis on the need for all eligible, appropriate patients to be referred for the study. Second, beginning in May 1996, physicians attending in the Bellevue CPEP were permitted to refer patients to the OCP. While emergency room physicians did not know patients as well as inpatient physicians, there was an opportunity to insure that all patients who met the minimum eligibility criteria at least would be screened for the OCP. It was made clear that referrals could later be withdrawn if the OCP was not found to be appropriate by the inpatient treating psychiatrist.

By July 1996, the CT was receiving approximately 25 referrals per month. The OCP had gained credibility as increasing numbers of orders were granted and patients were being successfully followed. In-service trainings were held frequently and departmental support continued. Nonetheless, inpatient staff identified a number of barriers which prevented potentially eligible patients from being referred to the OCP. These included:

1) the difficulty involved in obtaining medical records required to verify a history of previous involuntary hospitalizations and noncompliance;

2) the reluctance of some already overburdened physicians to do more paperwork and to testify in court, which often required hours of waiting;

3) pressures on inpatient staff to decrease length of stay and quickly return patients to the community;

4) the belief among some inpatient staff that outpatient commitment “has no teeth” or that “nothing will work”; and

5) the lack of availability of housing specifically designed to work with high risk patients, especially substance abusers, in conjunction with a court order.

Furthermore, only about 30% of patients referred to the program actually went to court for outpatient commitment orders or were in the control group of the study. This was a lower percentage than had originally been expected. Seventy per cent of patients who were referred to the OCP did not ultimately enter the program for a variety of reasons. Some patients were referred to state psychiatric centers for ongoing inpatient care, or, in far fewer cases, to other acute psychiatric or medical care facilities. On some occasions a treating physician withdrew a referral that had been made by another psychiatrist because a patient absolutely refused all services at the time he or she was ready for discharge, or no appropriate services were available. In some cases the referring physician had received inadequate or incorrect information, and the patient did not meet all of the Section 9.61 eligibility criteria. Some patients on voluntary status requested discharge before they could be brought to court for an outpatient commitment order, and some patients on involuntary status went to court to request discharge from the hospital, which was then granted before an outpatient commitment plan could be put into place. Some patients eloped from the hospital, especially when they were on pass to interview at outpatient programs, and a number of patients were placed out of New York City.

In spite of the barriers, the numbers of referrals made to the OCP increased and stabilized at approximately 30 per month. As the OCP became more familiar and established, the flow of referrals continued steadily. Because of the lower than expected proportion of referred patients who entered the program, the one year extension was necessary to insure that PRA had the number of subjects it stated that it required for statistical significance.

Once PRA stopped recruiting subjects for the research study, there was less of an emphasis on insuring that all eligible patients were evaluated for referral. Since March 1998, the OCP has continued to receive a steady flow of referrals of patients who are eligible and appropriate for outpatient commitment.

ACCESS TO SERVICES

The OCP received enormous cooperation across the New York City provider community. There has been a great deal of interest in outpatient commitment as a way of working with the most resistant, noncompliant patients. In many conversations providers have stated that they do not view outpatient commitment as a substitute for care, but rather as a mechanism that offers the assistance of the judicial system, as well as of Bellevue and the CT, in insuring the delivery of necessary and appropriate treatment to patients whose symptoms have prevented them from accepting it.

Many undomiciled patients referred to the OCP have had difficulty gaining access to housing which provides on site psychiatric services. If the patient does not have a history of living on the street or in a shelter, he or she is usually eligible for only a small number of supported housing options in the community. Patients with histories of incarceration, substance abuse and extreme noncompliance also have had very limited access to housing options. Fortunately, the TLC’s very often accept patients who are otherwise difficult to place. In many cases the OCP treatment plan includes case management and treatment services and the patient resides independently.

Patients sometimes disagree with aftercare plans that are recommended by their inpatient psychiatrists and social workers. Patients often rejected applications for supported housing because they objected to structure, money management, curfews and requirements for treatment and sobriety; in these cases the outpatient commitment treatment plans are developed as an attempt to at least maintain case management and psychiatric services. Patients also very frequently reject substance abuse treatment and services; again, every attempt is made to at least insure that some contact with the service system is maintained.

Once the PRA study began, it was necessary to assure providers that they would receive substantial support from Bellevue and the CT even if patients they accepted were randomized into the control group. Because providers could not be guaranteed that the patients they accepted would have a court order, they were reluctant to accept patients whom they perceived as requiring such an order to function well in the community. Nonetheless, a successful collaboration between Bellevue and over 80 other agencies was achieved by the close coordination of services and the commitment to work with a population that was very ill and perceived as very difficult to serve because of their histories of noncompliance. Appendix B is a listing of all of the programs that have provided court-ordered outpatient care in conjunction with the Bellevue OCP.

Only two community agencies refused to provide services in the context of an outpatient commitment order. One housing provider stated that it offered housing without the condition of requiring any kind of compliance with treatment. One free-standing clinic indicated that its psychiatrist did not believe in forced treatment and refused to treat a patient with an outpatient commitment order, in spite of the agency’s prior commitment and the patient’s request to receive treatment there.

Notwithstanding the general willingness of providers to accept and work with OCP patients, providers may close cases because patients refuse services or do not make appropriate use of the services. OCP patients generally require more outreach and staff time, and many programs are not funded to allow for these needs. Furthermore, a majority of substance abuse programs require a commitment to sobriety as a prerequisite for treatment. Since OCP patients often cannot maintain such a commitment, they require flexible clinical programs which acknowledge both the mental illness and the substance abuse disorder, and these treatment options are quite limited.

ACT resources diminished over the course of the pilot. ACT was specifically designed to work with very ill, noncompliant individuals in the community, and has been used in conjunction with outpatient commitment since it was first developed in Wisconsin in the 1970's. It was often viewed as the discharge plan of choice for OCP patients. The continued availability of ICM, and to a more limited extent, SCM services, made it possible for the CT to provide all patients with enhanced clinical services. Discharge planning was more difficult during times when housing and treatment resources were more scarce.

In a very few instances there were private psychiatrists whom referred patients had seen in the past and chose to return to upon discharge. In those cases, upon physician consent, individual treatment provided by a private practitioner has been included on OCP orders and treatment plans.

OUTPATIENT COMMITMENT HEARINGS

During the first year of the pilot program, court hearings where testimony was presented took place for all initial commitments and almost all renewals. Judges had to learn about the new law and its procedural requirements. Increasingly, as it became clear to MHLS that treatment plans were being negotiated and eligibility requirements met, there were more and more consents to initial orders. Many judges chose not to hear testimony and to rely on a physician’s affidavit if the patient consented to all aspects of the outpatient commitment order. Most patients consented to renewal orders when renewal was requested and such renewals were often approved by the court without a hearing. There continued to be occasional initial hearings and renewal hearings that were fully contested. Patients at all times were afforded access to counsel and, when needed, MHLS had access to independent psychiatric evaluations as it does for other mental health hearings.

On occasion the CT received complaints related to the hearings. Judges sometimes limited testimony that physicians and patients wished to offer. Judges also tended not to review all of the elements of the treatment plan in court if the patient had already consented to the plan. Other complaints regarding outpatient commitment hearings seemed to be similar to those made about other mental health hearings.

There were few thorough hearings regarding the issue of patient capacity in relation to outpatient commitment medication orders. As noted previously, one prerequisite under Section 9.61 for an outpatient medication order is a finding by the court, based on clear and convincing evidence, "that the patient lacks the capacity to make a treatment decision as a result of mental illness . . . ."[3] As most patients brought to court during the pilot program consented to a medication order requested by the hospital, there was rarely a dispute over the issue of capacity. It should be noted that the determination of a patient's capacity to make a treatment decision is a complex one, and is based on, among other considerations, the current mental status as well as a comprehensive assessment of past history. Many hospitalized seriously and persistently mentally ill individuals are able to return to the community under supervision but still lack the capacity to make certain treatment decisions.

Every effort has been made by the CT to insure that patients have had adequate access to MHLS, and requests for rehearings or modifications of outpatient commitment orders have been promptly addressed. In fact, the CT works closely with MHLS to negotiate treatment plans that are acceptable both to the hospital and to the patient. This process of ongoing discussion within the context of a court proceeding and judicial review appears to result in patients’ receiving appropriate advocacy and protection. The fact that patients so often consent to orders is understood to suggest that consumer choice had successfully been incorporated into the discharge planning and outpatient treatment evaluation process, and that the order is not usually viewed as being either threatening or harmful.

MEDICATION GUIDELINES AND ORDERS

The development of the Medication Guidelines required months of discussion and consensus building among the agencies represented on the Umbrella Committee. Because Section 9.61 left this responsibility to the President of HHC, in consultation with SOMH, there was no detailed legislative directive for the involuntary administration of medication in the community. The document that was finally promulgated and implemented on May 1, 1996, reflects the sensitive clinical, legal and ethical issues that involuntary medication in the community raises.

Outpatient commitment orders included medication as a category of service only after the Medication Guidelines were implemented. Although requesting medication orders was a time- consuming process that required additional paperwork, most Bellevue inpatient physicians felt that it was important to include medication on outpatient commitment orders. Almost two-thirds of the initial outpatient commitment applications included medication as a category of service. It is also important to note that sometimes physicians who wish to include medication on an outpatient commitment application are prevented from doing so because of the extra time required by the review procedure and deadlines for paperwork.

OCP patients discuss their medications with their treating psychiatrists, as is usual for outpatients. For patients with medication orders, the orders provide a framework within which the consumer and psychiatrist can negotiate treatment. Outpatient commitment medication orders may include multiple medications, all of which must have a dosage range included. This has permitted maximum flexibility in insuring that appropriate community treatment is delivered on a continuous basis in response to individual needs.

OCP medication orders often include the newer psychotropic medications, which are preferred by many patients. OCP medication orders reflect the appropriate treatment options for an individual patient. The medication orders have been viewed as a mechanism to insure that patients who, as a result of mental illness, are ambivalent about treatment understand the importance of taking medication.

The CT sometimes encounters situations in which providers misunderstand the function of the medication order. They sometimes believe that the patient is required to take the medication exactly as stated on the court order. It has been important to review the medication orders with treatment providers to insure their understanding of its proper meaning and use. Section 9.61 specifically allows a change in the medication order with the agreement of both the patient and the hospital.

Patients who have court orders for medication which can be administered by injection also negotiate with their treating psychiatrists as to the actual medication taken. According to the Medication Guidelines, only injectable medication may be administered over objection in the community. During the entire experience of the Bellevue OCP there have been no reports of medication being forcibly administered in the community. Many physicians have expressed concerns about the clinical and legal implications of forcibly administering medication in the community. Because the law makes no provision for bringing a patient to the hospital solely to administer medication, this also has not occurred during the pilot.