Attorney General Program Bill # 1

Summary by NYS Treatment Advocacy Coalition

ON 1/28/99 NYS Attorney General announced an outpatient commitment bill.  During the press conference, he credited the Treatment Advocacy Center in Virginia for its assistance in drafting the bill. Jon Stanley, Deputy Director of the Center, spoke at the conference to announce the bill.

They also credited the Center for the Community Interest (CCI) for their work on the bill.  CCI is a public interest law firm to help make communities safer and improve quality of life.

It will be formally introduced into the legislature within two weeks. We believe this bill, by mandating treatment for individuals with brain disorders who have been noncompliant with treatment (resulting in dangerousness) goes a long way towards protecting these individuals AND protecting the communities they live in.

Following are some of the highlights of a bill proposed by the NYS Attorney General’s Office to improve the care of individuals with neurobiological disorders.

The bill allows the state to assist those incapable of recognizing their need for care get care before they become a “danger to self or others” rather than waiting until after. The bill allows for “Community Treatment Orders” (also known as “Assisted Outpatient Treatment” or “involuntary outpatient commitment”).  39 states already have this legislation which allows the courts to order individuals to take medications and stay in treatment if they have a history of non-compliance likely to lead to dangerousness.

The bill provides extensive due process protections for consumers, including comprehensive court oversight.  It protects consumer’s privacy interests.  Primary responsibility for care and coordination of services is placed in the hands of psychiatrists and providers working in consultation with consumers.

Monitoring is accomplished by requiring providers and psychiatrists to report individuals in non-compliance with their community treatment orders. In the event of non-compliance ex-parte orders can be granted requiring the individual in non-compliance to be immediately hospitalized for “care, observation, and treatment” for 72 hours.  Ex-parte orders may also be granted so that individuals in non-compliance with medication orders can be medicated over objection in the community without the necessity of hospital readmission.

Following is an explanation of some of the provisions of the law as proposed by the Attorney General.

What services may be included in a community treatment order?

In order to ensure that the consumer receives services most likely to help, community treatment orders may include any of the following categories of services the consumer needs:

  • 1. medication
  • 2. individual or group therapy;
  • 3. day or partial day programming activities;
  • 4. services and training, including educational and vocational activities;
  • 5. supervision of living arrangements
  • 6. intensive case management services
  • 7. any other services described in certain sections of the law to treat someone’s mental illness and to assist an outpatient 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.

Who can order Community Treatment?

In order to protect the consumer from having any rights violated, only the Supreme Court in the county in which the subject of the petition is present can decide that someone should be placed under Community Treatment Orders.

Who can petition the court to consider placing someone under Community Treatment Orders?

In order to ensure that community treatment orders are available to all who can benefit from them, a petition requesting the court to place someone under Community Treatment Orders may be filed by different individuals interested in promoting the consumers welfare:

  • 1. any person with whom the consumer resides; or
  • 2. the parent, spouse, sibling, or child of the consumer; or
  • 3. the director of a hospital in which the consumer is hospitalized; or
  • 4. the director of any public or charitable organization or agency in whose institution the consumer resides; or
  • 5. the a qualified psychiatrist who is supervising the treatment of or treating the consumer; or
  • 6. the county director of mental health, community services, or social services in the county the consumer resides.

Who is eligible for community treatment orders?

In order to be eligible for community treatment orders a court of law must find that:

  • 1. the person is suffering from a mental illness; and
  • 2. in view of the person’s behavioral and treatment history, he or she is unlikely to survive safely in the community without supervision; and
  • 3. the person has received inpatient care and treatment for mental illness within the thirty-six months immediately preceding the filing of the petition and has failed to comply on one or more occasions with a prescribed course of outpatient treatment provided, however, that in authorizing the continuation of a prior order of involuntary outpatient treatment, the court need not find that the person has been hospitalized within the last thirty-six months; and
  • 4. in view of the person’s behavioral and treatment history, the person 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 person or others; and
  • 5. the person is likely to benefit from community treatment orders.

How does someone petition the court to consider placing someone under Community Treatment Orders?

Petitions to the court must state that the individual is present in the county where the petition is being filed and facts which support petitioners belief that the individual meets the first four criteria of eligibility.

The fifth criteria of eligibility must be attested to by an affidavit of a qualified psychiatrist stating the psychiatrist has examined the individual within the past 11 days and believes the subject is likely to benefit from community treatment orders . The psychiatrist must also state that he/she is willing and able to testify at the hearing on the request for community treatment orders and provide the court with a written proposed treatment plan.

Who must be notified when someone petitions the court?

In order to protect the individuals who may be placed under community treatment orders, extensive notification and due process procedures are incorporated in the legislation. The petitioner must serve notice to all of the following:

  • 1. The individual for whom community treatment orders are being requested; and
  • 2. Mental Hygiene Legal Services
  • 3. The nearest relative of the person (if known); and
  • 4. As many as three additional persons if designated by the person for whom outpatient treatment orders are being requested.

What happens at the hearing?

After a petition with the mandated documentation has been submitted to the court, the court will schedule a hearing on whether or not to grant the petition, generally within 5 days. The court will require the following people to attend the hearing:

  • 1. The person for whom the community treatment orders are being requested; and
  • 2. His/her lawyer (Mental Hygiene Legal Services will represent, free of charge, those subject to petitions if desired); and,
  • 3. The psychiatrist who provided the affirmations that he/she examined or attempted to examine the consumer, believes the consumer is likely to benefit from community treatment orders; and, has prepared a proposed written treatment plan; and,
  • 4. The individual who is petitioning the court; and,
  • 5. Any other person the court may determine (ex. families and providers that have relevant information).

If the individual has not been examined by a qualified psychiatrist within the previous 11 days the court may ask the individual to consent to an examination. If the individual refuses, the court may, if it has sufficient evidence to believe the allegations in the petition are true, order retention in a hospital or comprehensive emergency room for no longer than 24 hours for the purpose of conducting an examination.

The psychiatrist will be required to state:

  • 1. The facts that support the allegation that the person meets the criteria for community treatment orders; and;
  • 2. The treatment being recommended and the rationale; and
  • 3. That the treatment being proposed is the least restrictive alternative; and
  • 4. The types and classes of medication (if medication is being suggested) and the beneficial and detrimental physical and mental effects of such medication; and
  • 5. A list of all categories of services being recommended along with the name and address of a provider of services that has agreed to provide the services being requested.

The court will hear relevant testimony and make it’s determination.

How is the consumer protected?

The bill provides for numerous protections for consumers.

  • 1. Community Treatment Orders may only be authorized by a court.
  • 2. The consumer shall have the right to free counsel and be afforded an opportunity to present evidence and cross-examine adverse witnesses.
  • 3. The individual shall not be subject to Community Treatment Orders unless the petitioner proves by “clear and convincing evidence” the individual meets all the criteria for the orders.
  • 4. In addition to other rights or remedies, the individual retains his right to petition the court to vacate, modify, or stay the community treatment order.
  • 5. A determination that a person is in need of community treatment orders shall not be construed as a determination that the person is impaired, incompetent, or incapacitated.
  • 6. A person who files a petition that he/she knows to contain a false statement or false information shall be guilty of a class A misdemeanor.
  • 7. Initial Community Treatment Orders may last no longer than 12 months and can only be renewed for 12 months at a time. The consumer is entitled to free counsel and due process protections automatically at each renewal.
  • 8. The bill includes provisions to replace providers and change psychiatrists if needed.
  • 9. No material change which the consumer objects to may be made to the treatment plan without court approval.
  • 10. The consumer is allowed to testify in their own behalf.
  • 11. The hearings are closed to the public and there is no requirement to disclose the names of those under Community Treatment Orders.

What options does the court have?

If after hearing the evidence the court finds the consumer does not meet the criteria for community treatment orders, the court will dismiss the petition.

If the court finds by ‘clear and convincing evidence’ after hearing all the relevant evidence that the consumer meets the criteria for community treatment orders, and that there is no appropriate and feasible less restrictive alternative, the court may authorize the individual to be subject to community treatment orders for 12 months.

The courts order will:

  • 1. State the treatment plan, including which categories of services are offered.  Where possible, it will state the provider of service responsible for delivery of such services.  If a provider has not been designated, the director of community services for the county shall provide the court within 7 days the name and address of a willing provider.
  • 2. Designate a psychiatrist (or require the director of community services to designate a psychiatrist) responsible for care.

What happens if a consumer becomes non-compliant with the community treatment order:

The plan works by requiring someone to comply with treatment. Failure to comply is required to be reported to the psychiatrist who shall attempt to solicit compliance, and failing that, can get a court order allowing the individual to be immediately hospitalized or medicated as needed.

Some have said that the best part of this bill is not that it requires someone to stay in treatment, but that it requires the providers of treatment to take action when someone needs help, rather than just allowing them to move on to the next person.  In order to ensure compliance with Community Treatment Orders, the court order will:

  • 1. Require each provider of service named in the plan to inform the designated psychiatrist when knowledge is available that the person may not be in compliance with the treatment plan
  • 2. Provide that if during the course of the outpatient treatment order the designated psychiatrist finds the individual is out of compliance with the treatment order, the psychiatrist may petition the court for an ex-parte order directing a mobile crisis outreach team, ambulance, police, or others to take the individual to a hospital for admission for immediate observation, care and treatment.
  • 3. Provide that if during the course of the community treatment order the consumer has failed or refused to take mediation in compliance with the order and that delay in administering medication would not be in the best interests of the consumer, the psychiatrist may petition the court for an ex-parte order authorizing medication of the consumer over objection in a matter that in the standards of the medical community is clinically appropriate, safe, and consistent with the dignity and privacy of the individual. This may be done either in the community or by first transporting the individual to a hospital for immediate observation, care and treatment. Mobile crisis teams, peace officers, and others may be called to assist in medicating in the community and/or in transporting to the hospital, if needed.

Many people have asked, “What happens if the patient just doesn’t show up or stops taking medications?” 

The key to this is that treatment plans will require the individual to be in contact with someone frequently enough to determine whether or not they are in compliance.  For example, if someone is living at home, a relative can determine if they are compliant and report suspicions of non-compliance to the psychiatrist. If they are in a program, the program staff could let the psychiatrist know. If they are homeless, outreach workers could make the necessary observations. As a result of this bill, failure to stay in treatment triggers an obligation on the part of a provider.  This has not happened before.

What other provisions are there?

  • 1. The bill requires that educational materials be prepared for providers of services, judges, court personnel, law enforcement officials, and the general public.
  • 2. The bill requires the department of mental health to submit an annual report to the state Commission on Quality of Care for the Mentally Disabled on the number of persons within each county subject to community treatment orders.
  • 3. The court allows the Department of Mental Health to issue rules and regulations guiding implementation.  (Posted 2/1999)

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