SUMMARY OF STATE ELIGIBILITY CRITERIA FOR OUTPATIENT ASSISTED TREATMENT

(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)

Approximately 35 states have statutes that provide for outpatient commitment.  In most of these jurisdictions a person is not eligible for outpatient commitment unless he or she meets general criteria for commitment that include a finding of imminent danger to self or others or grave disability resulting in an inability to meet essential needs or a substantially similar finding (collectively referred to herein as “present dangerousness”).  In these states, after a general commitment finding is made, outpatient commitment becomes a less restrictive judicial alternative to inpatient commitment in cases where outpatient treatment is available and the judge believes it to be adequate and appropriate.

In approximately ten states outpatient commitment can be ordered without a finding of present dangerousness. This can happen in one of two ways.  In five states, there are independent criteria for outpatient commitment.  New York’s Section 9.61 falls into this category.  The essence of these criteria is a determination that the person can be treated safely in the community but, based on the person’s mental illness and treatment history, in the absence of court-ordered treatment, it is likely that he or she will not obtain needed treatment and will deteriorate to the point where he or she becomes dangerous to self or others.  In about five other states, these criteria for outpatient commitment (with substantial variation) are included as a separate category in the state’s general commitment standard, but in either case, a finding of present dangerousness is not an essential predicate to an outpatient commitment order.

Other than New York’s Section 9.61, there appears to be no state statutory provision for outpatient commitment that explicitly includes current hospitalization as an eligibility condition for outpatient commitment. The inclusion of that requirement in Section 9.61 was undoubtedly related to the establishment of a limited pilot project to be run out of a designated hospital.

States where general commitment criteria including a finding of present dangerousness must be met as an essential predicate to an outpatient commitment order:

Alaska, Arizona, Arkansas, Colorado, Delaware, District of Columbia, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, Virginia, Washington, West Virginia.

States that have independent criteria for outpatient commitment:

Georgia: “Outpatient” defined to be a person who is mentally ill and (a) who is not an inpatient (meeting present dangerousness standard) but who, based on treatment history or current mental status, will require outpatient treatment to avoid predictably and imminently becoming an inpatient; (b) who because of current mental status, mental history or nature of mental illness “is unable voluntarily to seek or comply with outpatient treatment;” and (c) who is need of involuntary treatment. Outpatient  commitment will not be ordered unless there is available outpatient treatment for the patient which meets the requirements of the plan chosen by the court and the court determines that the patient will likely obtain that treatment so as to minimize the likelihood of the patient’s becoming an inpatient.

Hawaii:  Outpatient commitment may be ordered if the court finds that: (1) the person is suffering from a severe mental disorder or from substance abuse; (2) the person is capable of surviving safely in the community with available supervision from family, friends, or others; (3) the person, at some time in the past, (a) has received inpatient hospital treatment for a severe mental disorder or substance abuse, or (b) as a result of a severe mental disorder or substance abuse, has been imminently dangerous to self or others or is gravely disabled; (4) the person, based on treatment history and current behavior, is now in need of treatment in order to prevent a relapse or deterioration which would predictably result in the person becoming imminently dangerous to self or others; (5) the person’s current mental status or the nature of the person’s disorder limits or negates his ability to make an informed decision to voluntarily seek or comply with recommended treatment; and (6) there is a reasonable prospect that the outpatient treatment ordered will be beneficial to the person.

New York (pilot project):  Outpatient commitment available upon findings that the patient (i) is eighteen years of age or older; (ii) is suffering from a mental illness; (iii) is incapable of surviving safely in the community without supervision, based on a clinical determination; (iv) is hospitalized at the hospital designated to take part in the pilot project, or in the case of an application for an additional period of treatment, currently receiving involuntary outpatient treatment; (v) has a history of lack of compliance with treatment that has necessitated involuntary hospitalization at least twice within the last eighteen months; (vi) is, as a result of 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, 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; and (viii) is likely to benefit from involuntary outpatient treatment; and a finding that the involuntary outpatient treatment program of such hospital is willing and able to provide the involuntary outpatient treatment ordered.

North Carolina:  Outpatient commitment available upon findings that (a) the person is mentally ill; (b) the person is capable of surviving safely in community with available supervision from family, friends or others; (c) based on psychiatric history, the person is in need of treatment in order to prevent further disability or deterioration that would predictably result in dangerousness under the statute; and (d) current mental status or nature of illness limits or negates the person’s ability to make an informed decision to seek voluntarily or comply with recommended treatment.

Texas:  Outpatient mental health services may be ordered upon findings that (a) appropriate services are available to the proposed patient; (b) the proposed patient is mentally ill; (c) the nature of the illness is severe and persistent; (d) as a result of the illness, the proposed patient will, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress, and experience deterioration to the extent that he will be unable to live safely in the community without court-ordered outpatient services; and (e) the proposed patient has an inability to participate in outpatient treatment services effectively and voluntarily, demonstrated by any actions occurring within the preceding two years or specific characteristics of his clinical condition that make impossible a rational and informed decision as to whether to submit to voluntary outpatient treatment; and, for an extended order beyond an initial 90-day period, (f) the proposed patient’s condition must be expected to continue for more than 90 days and the proposed patient must have received court-ordered inpatient services for at least 60 consecutive days during the preceding 12 months.  (Evidence must include expert testimony and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm (d) and (e) above.)

States where criteria for outpatient commitment are included as a separate category in the state’s general commitment standard or where a finding of present dangerousness is not an essential predicate to a general commitment order leading to outpatient commitment:

Alabama:  Alabama’s statutory standard for involuntary commitment is based on a finding of “mental illness” which does not clearly entail a finding of present dangerousness.  A person may be committed to outpatient treatment if the court finds that, (a) as a result of mental illness, the person is mentally ill; (b) as a result of mental illness, the person will, if not treated, continue to suffer mental distress and will continue to experience deterioration of the ability to function independently; and (c) the person is unable to make a rational and informed decision as to whether or not treatment for mental illness would be desirable.  

Mississippi:  Definition of “mentally ill person” includes a person who, based on treatment history and other applicable psychiatric indicia, is in need of treatment in order to prevent further disability or deterioration which would predictably result in dangerousness to himself or others when his current mental illness limits or negates his ability to make an informed decision to seek or comply with recommended treatment.

Montana:  One question the court is to consider in determining whether to require commitment is whether the person’s mental disorder, as demonstrated by recent acts or omissions, will, if untreated, predictably result in a deterioration of mental condition to the point at which the person will become a danger to self or others or will be unable to provide for his own basic needs;  predictability may be established by the person’s relevant medical history.

Oregon:  If release for treatment of “mentally ill person” on a voluntary basis or conditional release is not in best interest of person, court may commit the person to the Mental Health and Developmental Disability Services Division which may place the person in outpatient commitment subject to statutory requirements. Definition of “mentally ill person” includes a separate category for a chronically mentally ill person who, within the previous three years, has twice been hospitalized by the Division, is exhibiting symptoms or behavior substantially similar to those that preceded and led to one or more of the prior hospitalizations, and unless treated, will continue, to a reasonable medical probability, to physically or mentally deteriorate so that the person will become presently dangerous to self or others or unable to provide for basic personal needs.

South Carolina:  Commitment can be based on a finding that the person is mentally ill and needs treatment and, as a result of his condition, presents a likelihood of serious harm to self or others, or “lacks sufficient insight or capacity to make responsible decisions with respect to his treatment.”

Wisconsin:  Under the statutory provision currently in effect, one of the bases for a determination that a mentally ill person is “dangerous” is a finding that the person, because of mental illness, evidences either incapability of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives, or substantial incapability of applying such an understanding to his mental illness in order to make an informed choice as to whether to accept or refuse medication or treatment; and evidences a substantial probability, as demonstrated by both his treatment history and recent acts or omissions, that he needs care or treatment to prevent further disability or deterioration and a substantial probability that he will, if left untreated, lack services necessary for his health and safety and suffer severe mental, emotional or physical harm that will result in the loss of his ability to function independently in the community or the loss of cognitive or volitional control over his thoughts or actions.  Note: The foregoing provision will not apply after November 30, 2001.

NOTES

. Many of these statutes specifically provide that the court shall issue a commitment order for placement in the least restrictive appropriate alternative.  Outpatient commitment is, of course, less restrictive than inpatient commitment. However, outpatient commitment must be appropriate under the circumstances and, in many instances, after general commitment criteria are met,  outpatient commitment can be ordered only if specific statutory requirements are satisfied.  Examples are given in some of the notes that follow.

. A number of states also have specific provisions for a stay of commitment proceedings or commitment orders pending the results of agreed to or voluntary outpatient treatment. See, e.g., Kentucky (upon application and agreement of the parties, outpatient treatment may be ordered by the court following the preliminary hearing for a period of up to 60 days (with possibility of a further 60-day continuance) prior to final hearing) Ky Rev. Stat. Ann. Sec. 202A.081 (Michie 1996); Michigan (court shall approve request, accompanied by stipulation, for proposed outpatient treatment plan for up to 90 days, and defer commitment hearing) Mich. Stat. Ann. Sec. 14.800(455)(5)(1998); Minnesota (provision for stay of order of commitment pending approved outpatient treatment) Minn. Stat. Sec. 253B.095 (1998); Nebraska (commitment order may be stayed pending results of voluntary treatment) R.R.S. Neb. Sec. 83-1036 (1998).

. Alaska Stat. Secs. 47.30.700, 47.30.755 (1998).

 

. Ariz. Rev. Stat. Sec. 36-540 (1998) (If general commitment criteria are met, the court may order outpatient treatment if (1) the court determines that (a) the patient does not require continuous inpatient hospitalization; (b) the patient will be more appropriately treated in an outpatient treatment program or in a combined inpatient and outpatient treatment program; (c)  the patient will follow a prescribed outpatient treatment plan; and (d) the patient will not likely become dangerous or suffer more serous physical harm or serious illness or further deterioration if he follows a prescribed outpatient treatment plan; and (2) the court is presented and approves an appropriate treatment plan meeting statutory requirements.).

. Ark. Stat. Ann. Sec. 20-47-214 (1997) (basis for outpatient commitment unclear and rests on statutory provision allowing “person sought to be involuntarily admitted to request treatment under the least restrictive alternative appropriate setting”). 

. C.R.S. Secs. 27-10-107, 27-10-109 (1997).

.16 Del. C. Secs. 5001, 5010 (1998).

. D.C. Code Sec.21-545 (1998).

.405 ILCS Secs. 5/1-119, 5/3-811 (1998). Alternative treatment (to hospitalization) shall not be ordered unless the program being considered is capable of providing adequate and humane treatment in the least restrictive setting.  405 ILCS Sec. 5/3-812 (1998).

. Burns Ind. Code Ann. Sec. 12-26-6-8 (1998). Outpatient commitment may be ordered if the court finds that the person is (1) mentally ill and either dangerous or gravely disabled; (2) likely to benefit from an outpatient therapy program that is designed to decrease the individual’s dangerousness or disability; (3) not likely to be either dangerous or gravely disabled if the person complies with the therapy program; and (4) recommended for an outpatient therapy program by the person’s examining physician. Burns Ind. Code Ann. Sec. 12-26-14-1 (1998).

. Iowa Code Secs 229.1(14), 229.14 (1997).  Outpatient treatment is appropriate, in accordance with chief medical officer’s report, if the person is “seriously mentally impaired” and in need of treatment, but does not require full-time hospitalization. Iowa Code Sec. 229.14(3) (1997).

. Kansas Stat. Ann. Secs. 59-2946a(f), 59-2966 (1997).  Outpatient treatment may be ordered if the court finds that the patient is likely to comply with such an order and the patient will not likely be a danger to the community or be likely to cause harm to self or others while subject to such order. Kansas Stat. Ann. Sec. 59-2967 (1997).

. La. Rev. Stat. Ann. Sec. 28:55(E) (1998)  (Commitment should be to a designated treatment facility which is medically suitable and least restrictive of the person’s liberty.). A person who is judicially committed may be required by the court (or person in charge of treatment facility) to report for outpatient treatment as a condition of his release. La. Rev. Stat. Ann. Sec. 28:56(G)(1) (1998).

. Mich. Stat. Ann. Secs. 14.800(401),(468),(469a) (1998) (Alternative treatment or combined hospitalization and alternative treatment may be ordered if the court determines that there is an alternative treatment program adequate to meet the individual’s treatment needs and prevent harm to self or others within the near future and that agency or mental health professional is available to supervise the program.).

.  Minn. Stat. Sec. 253B.09 (1998).

.  R.R.S. Neb. Secs. 83-1009, 83-1035, 83-1038 (1998).

. N.H.R.S.A. Sec. 135-C:45 (1998).

. N.D. Cent. Code Secs. 25-03.1-02(11), 25-03.1-21 (1998).

. ORC Ann. Secs. 5122.15(C)(6),(D),(E) (Anderson 1998).

. 43A Okl. St. Sec. 5-415(E) (1998).

. 50 P.S. Sec. 7304(A),(F) (1998).

. R.I. Gen. Laws Sec. 40.1-5-8(j) (1998).

. S.D. Codified Laws Secs. 27A-1-2, 27A-10-9.1 (1998).

. Utah Code Ann. Sec.  62A-12-234(10) (1998) (Judicial commitment is to a local         mental health authority which “can provide the individual with treatment that        is adequate and appropriate to his conditions and needs.”).

. 18 V.S.A. Secs. 7101, 7617 (1998).

. Va. Code Ann. Sec. 37.1-67.3 (1998).

. Rev. Code Wash. (ARCW) Sec. 71.05.240 (1998).

. W.V. Code  Secs. 27-5-4(j),(k); Op. Att’y Gen., May 29, 1981.

. O.C.G.A. Sec. 37-3-1(12.1) (1998).

. O.C.G.A. Sec. 37-3-81.1 (1998).

. Hawaii Rev. Stat. Ann. Sec. 334-121 (1997).

. N.Y. Mental Hygiene Law Sec. 9.61 (1998).

.  N.C. Gen. Stat. Secs. 122C-263(d)(1), 122C-271 (1997).

. Tex. Health & Safety Code Secs. 574.034, 574.035 (1998).

.  Ala. Code Secs. 22-52-1.1, 22-52-1.2, 22-52-10.2 (1998).

. Miss. Code Ann. Secs. 41-21-61, 41-21-73 (1998).

. Mont. Code Anno. Secs. 53-21-126, 53-21-127 (1998).

. ORS Secs. 426.130, 426.127 (1997). 

. ORS Sec. 426.005 (1997).

. S.C. Code Ann. Sec. 44-17-580 (1997).

. Wis. Stat. Secs. 51.20(1)(a)(2)(e), 51.

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