BACKGROUND ON OUTPATIENT ASSISTED TREATMENT IN AMERICA AND NEW YORK

(Excerpted from  REPORT OF THE BELLEVUE HOSPITAL CENTER OUTPATIENT COMMITMENT PILOT PROGRAM prepared by:Howard Telson, M.D.  Richard Glickstein, Esq. Manuel Trujillo, M.D., MARCH 1, 1999 Bellevue Hospital Center, Department of Psychiatry, 462 First Avenue, New York, NY 10016)

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 or 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 involved in the process at all.

The early hospitals reported excellent outcomes, and were perceived as being highly successful. As a result, a movement developed which urged the states to build public asylums to care for those who were mentally ill and indigent, essentially advocating for this population’s right to treatment. In 1833, Massachusetts built the Worcester State Hospital, which became a model for other states because its success was similar to that of the older hospitals. Thirty years later, there were 62 psychiatric hospitals in the United States, most of which were publicly 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” movement, 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.

With many other individuals, however, the reason for their 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 became 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 had never 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 for 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” 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 a 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 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 1993 Community Mental Health Resources Act, more commonly known as the Community Reinvestment Law. 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., a 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, 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 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.

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