Change


			Changes to make to Bellevue Assisted Outpatient Treatment program

			Changes to include when expanding the law statewide There are four types of changes to include when taking this law statewide: 1. Changes to ensure that more of the right people get into the program and fewer of the wrong people get in. 2. Changes to improve treatment once in program. 3. Changes to increase compliance. 4. Changes in the burden of proof to medicate Changes to ensure more Of the RIGHT people get into the program AND FEWER OF THE WRONG PEOPLE GET INTO THE PROGRAM. Narrowly define “mental illness” The law requires individuals to be suffering from a mental illness. Because New York has used the rubric of ‘mental illness’ to encompass so many social problems such as ‘poverty’, ‘poor grades’, ‘violence’, and other ‘at-risk’ behavior, the law should narrowly define it’s applicability to prevent misuses. The law should limit it’s applicability to individuals with schizophrenia, schizoaffective disorder, bipolar, major depression, OCD and borderline personality. Expand list of individuals and organizations that can apply for program on behalf of patient. The current law only allows directors to bring petitions; however, persons other than just directors of facilities (e.g., parents, spouses, adult children, friends, providers, district attorneys, etc.) should also be able to petition the courts for appropriate care and treatment. This is a “patient access to services” issue, where treatment is being effectively denied by funneling it only through the bureaucracy. Make it a crime to file a false petition If the law is modified to allow others to petition for assisted outpatient treatment, the law should provide penalties for individuals who file false petitions. Have court liaison to assist with filing of petitions. If the ability to petition the court for assisted outpatient treatment is extended beyond hospital directors, to include families (as is done with inpatient commitment), then court programs should also be set up to assist families with the filing of these petitions. Allow entrance without requiring a “service history”. Entry into the program is only available to those with “a lack of compliance with treatment that has necessitated involuntary hospitalization at least twice within the last 18 months.” NY is the only state with a requirement of previous hospitalizations due to non-compliance. At a minimum the program should be opened up to anyone who meets any of NY’s current involuntary treatment standards or has a “history of non-compliance likely to lead them to meet the involuntary treatment standards”. Replace the “serious harm” requirement with more realistic and protective criteria. In order to be eligible for the program, the individual must need admission to “prevent deterioration which is likely to result in serious harm to the patient or others”. This is too high a bar to meet. Harm should not have to be serious. In addition, what about harm to property? The bar to meet to get admission to this program should be no higher, and hopefully lower, than the bar to meet to gain involuntary inpatient commitment. “Survival in the community without supervision” should be conditioned on the availability of assistance that is “willing and able”. In order to be eligible for the OPC, individuals must be ‘incapable of surviving safely in the community without supervision”. Many can survive only because families are being forced to provide care. The law should be amended to show that they are able to survive in the community with the help of “willing and able” assistance. The law should require that a statement of the willingness and ability to provide assistance be provided to the court in writing before a hearing. This is useful because it avoids the situation where a family member is asked in open court whether a patient can go live with him and the family is required to say ‘no’ for whatever reason. Ensure funding of program. Like with community reinvestment legislation, inpatient savings and forensic savings from this bill should be used to fund comprehensive community based care for the most ill. Changes TO Improve TREATMENT once in program. Add provisions for individuals who also abuse substances. We do not advocate expanding the program to include substance abuse without a co-occurring NBD. But it should include special provisions for those who have both NBD and abuse substances. Those provisions would include participation in substance abuse programs and/or testing free of substances as a something that can be court ordered. Make ability to order medications conform to Utah decision rather than Rivers. The pilot project only allows the court to include medication in the list of court ordered services when “the patient lacks the capacity to make a treatment decision as a result of mental illness”. This may not be necessary in light of the Utah decision. The Federal Courts have ruled that it is permissable to combine competency and commitment hearings and that administrative review rather than court process can be used to determine the response to treatment refusals. In addition, New York courts have ruled that past history of deterioration as a result of noncompliance, might be sufficient enough to medicate over objection regardless of ‘current’ capacity. If a ‘capacity’ hearing is required it should be automatically held simultaneously with the commitment hearing. Lower burden of proof needed to choose treatment Section 9.61 (2) requires “clear and convincing” for both the determination of the patient’s decision-making competency *and* the proposed treatment. We believe this is an appropriate standard for making the decision on competency, but once a person is judicially determined to be incapable to make competent decisions and to be in need of treatment to restore his decision-making ability, it becomes absurd, if not inhumane, to use a high standard of evidence to justify any treatment that might be offered or actually rendered. We have attached a separate paper advocating for use of the “preponderance of evidence” standard of the “reasonable person” for treatment decisions. Allow community interests to play a role in determining the appropriateness of medication orders. The law stipulates many provisions related to the health and welfare of the patient that must be taken into consideration when considering whether medicines should be court ordered. Could the law allow that the interests of the community be one of the factors considered? This is the legal justification for the highly successful Tuberculosis program in New York which also provides for court ordered outpatient medication compliance. Allow inpatient hospitalization as a service allowed by outpatient treatment orders. The outpatient treatment order does not currently allow the ordering of inpatient treatment. While it may not be appropriate to ammend this bill focusing exclusively on Assisted Outpatient Treatment, we would urge study of procedures designed to eliminate the bifurcation of these two treatment modalities while protecting important due process protections for consumers. This system would eliminate barriers and allow an individual to migrate from Assisted Inpatient Treatment to Assisted Outpatient Treatment, and vice versa, as clinically needed. NY’s procedures to make ‘substitute decisions’ might provide the model for such a system. Changes to increase compliance and consequences from lack of it. The Policy Research Associates concludes the program had no “teeth”. Had the violent been included in the program, as it was originally intended, this lack of teeth would be problematic. Making it stronger will not affect those prone to comply, since they will definitionally, not be subject to the consequences of non-compliance. However, making it stronger will enable the program to be applied to those who need it most: mentally ill substance abusers, those who refuse all treatment, and those with past criminal records. Make violation of treatment order the criteria for re-hospitalization. Under the current law, noncompliance is not, in and of itself, grounds for hospital readmission. Ideally, the law should have been crafted so that non-compliance could result in re-hospitalization for those likely to become ‘danger to self or others’, ‘gravely disabled’ or ‘in need of care and treatment’ without it.. Strengthen and safen the procedures for medication over objection in the community The law’s intent to prevent people from needlessly deteriorating to the point of becoming ‘danger to self or others” and/or needing rehospitalization is defeated by the lack of strong, humane, workable procedures for medicating over objection in the community. We would urge that this short-coming be fixed. Within that would be provisions that provide for transporting the individual to the hospital by properly trained EMS and/or police. Why the burden of proof required to select treatment should be changed? Section 9.61 (2) requires the highest civil burden of proof (“clear and convincing”) to apply to both the determination of the patient’s decision-making competency *and* the proposed treatment. This violates a patient’s rights and is inconsistent with other statutes enacted by the New York State legislature. It is a matter of constitutional and traditional law that judicial reductions of a person’s inherent decision-making autonomy can only be made with a high standard of proof called “clear and convincing evidence.” This evidentiary standard is used to give the benefit of doubt to the patient to protect his or her right to control body, mind and property. However, once a person is judicially determined to be incapable to make competent decisions and to be in need of treatment to restore his decision-making ability, it becomes absurd, if not inhumane, to use a high standard of evidence to justify any treatment that might be offered or actually rendered. To simplify this concept by an analogy, if the treatment was a cardiac by-pass instead of psychiatric treatment, no one would argue that the heart patient must show by a high standard of evidence that appropriate, medically acceptable treatment should be given; otherwise, it will be totally denied. The patient in need of a by-pass operation will have it if a reasonable person and a reasonable physician are persuaded by the preponderance of evidence that having it conformed to standard medical practice and would provide benefit. But, under this statute, the patient must show more than that it must be shown that psychiatric treatment is more than persuasively better than any alternative, it must show that benefits are a convincing and clear result. Thus, the patient’s future treatment will be denied unless it is shown to be “clearly and convincingly” appropriate; otherwise he or she gets nothing. This is particularly absurd given that the court must first find that the patient is clearly and convincingly in need of some psychiatric treatment. Yet, once this is decided, the statute forces the court to purposely reduce the chances for getting that treatment by setting an inappropriately high bar to choosing the appropriate treatment. Indeed, in our judgment, this is a violation of the patient’s rights to standard, medically acceptable treatment. It utilizes a more unlikely to succeed standard of evidence thus reducing the chances of the patient getting served, once having been identified as needing it. The “preponderance of evidence” standard of the “reasonable person” is the standard of evidenced used for medical and mental hygiene care in tort law and civil rights law. Most recently, in the Surrogate Decision-Making Program (an analogous due process proceeding for mentally incompetent patients in need of major medical care), the legislature mandated a “clear and convincing” standard for the patient’s decision-making competency, but only a “preponderance of evidence” for the choice of treatment. Why should psychiatric treatment be purposely made more unavailable than ordinary major medical treatment, especially since psychiatric treatment and diagnosis are generally more difficult to show with the same degree of certainty as major medical procedures. The other side of this coin is the repeated standards in this statute for “narrowly tailored,” “least restrictive” and least “feasible” rendering of psychiatric care to a patient found to be in need. Using the cardiac analogy again, what heart patient would be satisfied with a physician who said that he would repair a damaged heart to the “least” level possible? No, any heart patient would want to do more than survive, she would want to play baseball and be active, if that was a possibility with an operation that was more than the least feasible surgery. These minimalist standards are not only insulting to a patient, her family and the parens patriae obligation of the government, who should all expect the best treatment available and appropriate with professional standards, but they can also be seen and should be characterized as a violation of a patient’s rights to be restored to full competency and to a decent life where that is [most, not least] feasible. In the numerous cases where a Jehovah witness’ baby needed blood in a life-threatening situation and the parents refused permission, should the court order that the baby be given the least amount of blood feasible? Obviously not, the court must order that an adequate amount blood be given that is consistent with medical standards. We will be submitting more changes and monitoring this legislation as it goes through the legislative process. (Posted 2/1999)

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