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by Paul F. Stavis, Counsel to the Commission

Amy Petragnani, Assistant Counsel, assisted in the research and writing of this article

An article on page 1 of this issue reports on an investigation and subsequent report by the Commission of a tragic homicide of a 63 year-old woman who was allegedly pushed into the path of an oncoming subway train by a patient who had eloped from Manhattan Psychiatric Center. The patient had a long history of violent behavior and substance abuse. The report recommends to the Office of Mental Health [and this was reiterated in the Commission Chairman's testimony at the Legislative Hearing on March 10, see p. 6 in this issue] the use of "conditional release," a rarely utilized provision of the Mental Hygiene Law, for patients:

1. who have a history and current diagnosis of serious mental illness;
2. who have engaged in repeated incidents of serious violent behavior;
3. who have a concurrent diagnosis of alcohol and/or substance abuse; and
4. who have previously been discharged from a psychiatric hospital, have failed to comply with their treatment plan, resumed their alcohol or substance abuse, and endangered themselves or others and led to their involuntary rehospitalization.(1)

This article will explore the background, history, constitutionality and recent legal developments on the use of conditional release.

Every state in the United States has some form of conditional release statute for persons who are involuntarily institutionalized for care and treatment of mental illness.(2) Many European countries also have such statutes, including Britain and Sweden. Of course, conditional discharge statutes vary throughout the nation, but in general they permit an earlier release and more personalized treatment for patients who might otherwise remain institutionalized.

For example, New York State has two variations, "Involuntary Outpatient Treatment"(3) which requires a court order, and a "discharge and conditional release" statute which permits facility officials to release patients subject to subsequent judicial review.(4) Again typical of such statutes, the legislative history of New York's laws point out its purpose. The Governor's Memorandum of Approval for the conditional release statute said it was "to insure that patients are not being thrust out to the community unprepared but, where necessary are being reintroduced to community living.. . .(5) The New York State Catholic Conference noted its support by stating that:

[This bill] describes a responsible concern of the state for release and discharge of patients so that they do not become "lost" in communities and become unable to seek out services necessary for their self-reliance and independence.(6)

The issue of conditional discharge has nevertheless raised a very emotional issue among different groups of constituencies in the mental health field. Some studies have concluded that "the clinical utility of mandatory outpatient treatment has not yet been convincingly demonstrated."(7)

Yet, an award-winning example of the prevention of violent behavior by persons with mental illness through the use of close supervision is found in the Oregon Psychiatric Security Review Board [OPSRB]. In its supervision of over 500 patients who were found "guilty but insane," the recidivism rate was almost non-existent for violent crimes or acts.(8)

The misinformed belief that the conditional release statute, MHL 29.15, is relatively new and as of yet unused is readily disabused with a cursory glimpse into its rather long and active history. In fact, conditional release has existed in one form or another since the enactment of the Mental Hygiene Law itself in 1927, and its roots can be traced even further back to the Mental Deficiency Law of 1919.

Today's conditional release statute finds its genesis in three sections of the Mental Hygiene Law of 1927,(9) each with a unique origin and history. The first of these three sections is section 132 of the Old MHL, entitled "Community Status," which finds its earliest derivation in section 38 of the Mental Deficiency Law of 1919(10) and section 138 of the Mental Hygiene Law of 1927.(11) Old MHL 132, which was enacted in 1936 and was almost identical to its predecessor statutes, described an early scheme of conditional release, where "[a] patient of any of the institutions for mental defectives [could] be permitted by the director or person in charge to leave the institution [on] community status and remain in the custody of a parent, relative, legal guardian or other person...."(12) Such a release was undoubtedly "conditional," since "[a]t any time during the period of such community status, upon evidence satisfactory to the director or person in charge or to the commissioner, that the community status should terminate, such patient must be returned to the institution."(13) Moreover, the "physical, moral, and mental condition" of the patient had to be periodically reported to the commissioner, "subject to such rules and regulations as the commissioner [determined]," and a failure to do so could have resulted in compulsory return to the institution.(14)

The second of these three sections that comprise the modern conditional release statute is subdivision (12) of Old MHL 34. In general, section 34 outlined the powers and duties of the directors of state institutions. Subdivision 12, added in 1946, conferred on the director the power to conditionally release to suitable families those patients that "do not require active mental hospital care and treatment," with the proviso that "any patient so placed in family care shall be returned to the institution at any time upon order of the director, and until they are so returned or are discharged the responsibilities of the director of the institution shall continue with respect to such persons. . . ."(15) It is also important to note that the legislative history of section 34(12) explicitly stated that "[t]his procedure ha[d] been tested by time in the Department,"(16) which suggests that this form of conditional release was commonly used by facilities in the course of treatment. Such an inference refutes the idea that this is a new concept that has yet to be tested in the Mental Hygiene System.

The third and final provision from which today's conditional release statute was derived is subdivision (3) of Old MHL 87, which has a significantly shorter, yet more complicated legislative history than the other two provisions. Prior to 1961, section 87 of the Old MHL solely dealt with the discharge of patients. It should also be noted that this provision only concerned patients committed to a mental hygiene facility under the correction law, and not patients admitted pursuant to the provisions of the civil commitment laws. In 1961, however, Old MHL 87 was renamed "Discharge, conditional release and convalescent status of patients," and subdivision (3) was added to address the conditional release of patients.(17) This subdivision provided that, if after application to the court by the patient the court finds that the conditional release of such patient "will not be detrimental to the public safety or welfare or injurious to the patient, it shall order his . . . release on such conditions as it shall determine to be necessary."(18) However, the conditional release scheme also provided for revocation of such status at any time within five years of conditional release if the director determined it to be necessary "for the safety of such person or the safety of others."(19) Although this third provision does indeed bear some resemblance to today's conditional release statute, particularly in that it provided for a hearing and "release on . . . conditions," it was much closer in its scheme and application to the current section 330.20 of the Criminal Procedure Law.(20) However, one of the arguments in support of the bill at the time it was enacted was that such a procedure was necessary to remove these patients "with the greatest possible speed . . . to a treatment setting that [was] more suitable to their condition," an argument that parallels the doctrine of the "least restrictive environment," a policy upon which today's conditional release statute is at least partially grounded.(21)

Old MHL 87(3) was repealed in 1966, only five years after it was enacted.(22) The history surrounding this decision to repeal Old MHL 87(3) is somewhat unclear and convoluted, and there was no explicit reason given for its rescission. Interestingly, however, although the portion of Old MHL 87 dealing with conditional release and convalescent status was repealed pursuant to the Laws of 1966, the caption for section 87 remained "Discharge, conditional release and convalescent status of patients."

The New York State Legislature undertook a complete revision of the Mental Hygiene Law in 1972, which was "the first major revision of the Mental Hygiene Law since 1927 and reflect[ed] the vast changes that ha[d] taken place in the methods of treatment of the mentally ill, the mentally retarded and the alcoholic during the [preceding] fifty years."(23) This revision included the consolidation of sections 34(12), 87, and 132 of the Old MHL, resulting in section 29.15, the first version of the modern conditional release statute. Despite this change, however, the legislative history of MHL 29.15 emphasized that "[t]he bill carrie[d] over in substance the provisions of the [old] law with respect to the Commissioner's power to transfer and discharge patients, the provisions for release of patients to the community, including conditional release and family care arrangements . . . ."(24)

Subsequently, in the Laws of 1975, the 1972 version of MHL 29.15 was repealed, and the modern version of MHL 29.15 was enacted by the Legislature.(25) Not only did the Laws of 1975 create an intricate scheme of due process protections to safeguard the civil rights of patients on conditional release, including the right to a hearing upon request, periodic notice, and access to the Mental Health Information Service,(26) but it also mandated that a written service plan be prepared for each patient conditionally released to the community. Since 1975 and until the present, MHL 29.15 has been modified only slightly, and its goals have remained constant.

The legislative history of conditional release reveals that this method of discharge has existed continuously in New York State since 1919, which suggests that this is a concept that cannot be immediately dismissed. Indeed, in its essential purposes, conditional release has been remarkably consistent. Among the similar elements in conditional release statutes over the past three-quarters of a century are the following: (1) "suitability" for conditional release is at the discretion of the facility director; (2) the standard for conditional release is that the patient "does not require active mental hospital care and treatment;" (3) rehospitalization is also a "suitability" determination within the discretion of the facility director (which, as a judgment of a state official, can always be challenged in court); (4) conditional release is a method for maintaining both the legal tie and the legal obligation of the state's hospital to the patient, in terms of a legal right to appropriate psychiatric treatment; and (5) it is a method to assist the patient to be reintegrated into society. Given this significant legislative history and the striking similarities in the language and goals of the statutes, the argument that conditional release has no precedent in the past and should not be used in the present loses substantial credibility.

Opponents of renewed usage of the conditional release statute contend that the statute is unconstitutional as violative of the Due Process Clause of the United States and New York State Constitutions. Concededly, valid arguments can be made on both sides of most constitutional issues, including this particular issue. However, after a thorough examination of the case law on an analogous issue, in conjunction with the intricate scheme of due process protections provided by the statute itself, it is virtually unfathomable that MHL 29.15 would be struck down in the face of a constitutional challenge.

It is first instructive to note that upon initial admission to a mental hygiene facility, a patient's due process rights are immediately implicated. In order to protect these rights, the Mental Hygiene Law has created elaborate admission and commitment procedures to protect these rights, including a hearing, written consent by the patient, access to the Mental Hygiene Legal Service, and periodic review of such status. The most troubling issue is whether the failure to provide a hearing prior to commitment, or automatically upon commitment, is violative of due process, an issue addressed by the Second Circuit Court of Appeals in the case of Project Releasev. Prevost.(27) In upholding the constitutionality of these provisions, the court held the following:

In our view, given "the layers of professional [and judicial] review" contained in the New York State Mental Hygiene Law's elaborate notice and hearing provisions, including notice to relatives and others designated by the patient, and the availability of a judicial hearing within five days of demand by the patient, relative or friend, as well as habeas corpus relief, we find that the statute meets procedural due process minima.

. . . [D]ue process issues "should not be resolved 'in terms of required days, hours, or minutes, but should rather turn on the basis of the interest involved and fundamental fairness'" . . . .In the context of the New York State statute as a whole, given the availability of hearings, counsel and periodic status review, . . . the time periods embodied in the M.H.L. fall within the bounds of procedural due process.(28)

Given that MHL 29.15 provides nearly identical due process protections to the provisions challenged in Project Release, it appears that this provision would also survive constitutional challenge, particularly since a patient on conditional release has also been afforded the procedural due process protections of the above admission provisions of the Mental Hygiene Law. Moreover, MHL 29.15 provides two tiers of due process safeguards, the first of which is automatically triggered when a patient is conditionally released.

Pursuant to this first tier of safeguards, patients on conditional release must be informed once every one hundred twenty days of their status and rights, "including their right to avail themselves of the facilities of the mental hygiene legal service."(29) At each of these times, the written consent of the patient to stay on conditional release status must be obtained, and a copy must be forwarded to the mental hygiene legal service.(30) Also, there shall be periodic review of the patient's suitability to remain on conditional release status, at which time a hearing on this issue may be requested.(31) It is of no minor significance that MHL 29.15's scheme of notice, hearing, periodic review, judicial approval of continued conditional release status, and access to Mental Hygiene Legal Service is virtually identical to the safeguards challenged in Project Release, which unequivocally were deemed constitutional. It is therefore undisputable that the first tier of procedural safeguards provided under MHL 29.15 "meet[] procedural due process minima."(32)

The more troubling issue of constitutionality arises under subdivision (e) of MHL 29.15, the provision concerning the termination of conditional release status. Pursuant to MHL 29.15(e), the conditional release status can be terminated and hospitalization reordered "at any time during the period for which retention was authorized, if, in the director's judgment, the patient needs inpatient care and treatment and the conditional release is no longer appropriate."(33) The question then becomes whether it is an unconstitutional violation of the due process rights of patients to terminate their conditional release status and order rehospitalization before a hearing on the issue of the appropriateness of rehospitalization is conducted. For a number of reasons, it is evident that this provision would withstand constitutional challenge.

Aside from the fact that this is a rehospitalization rather than a recommitment, and the facility's legal tie to the patient still exists,(34) the revocation of conditional release is accompanied by its own scheme of procedural safeguards, which constitutes the second tier of due process protections. According to this second tier of built-in protections, the patient or any relative or friend or the mental hygiene legal service can request a hearing on the issue of the appropriateness of rehospitalization at any time within the first thirty days of return to the facility. Once a request is made, the hearing must be held within five days. Also, for voluntary patients on conditional release, they must consent to the rehospitalization, unless their status is converted to involuntary in accordance with the procedures of the Mental Hygiene Law. Moreover, once the patient is rehospitalized, all of the due process protections of the first tier of safeguards reactivate. The patient is therefore never without due process protections. Lastly, and most significantly, as for the fact that a hearing on the appropriateness of revocation of conditional release is after rehospitalization, Project Release clearly resolves this issue in favor of constitutionality.

In a final note on this issue, the constitutionality of MHL 29.15, including 29.15(e), is further supported by the underlying philosophy of the conditional release statute, which is grounded upon the theory of the "least restrictive environment," stated as follows:

The civil rights of mentally disabled persons require that such persons be treated and served in the least restrictive setting possible in which treatment or service goals can be met. Therefore, periods of inpatient service should be as short as possible in accordance with the individual patient's plan of care and treatment.(35)

Two courts in New York State have recently given a broad interpretation to the authority of the state to continue care and treatment of a person with a history of mental illness under the criminal procedure law. It remains to be seen whether such expansion will also be observed under the civil law principles of the mental hygiene law.

In the case of In the Matter of George L.(36) and In the Matter of Francis S.,(37) the state's highest court and an appellate court respectively decided that even though a psychiatric condition might be in remission or the patient not displaying any violent acts, nevertheless the facility's clinical professional may decide that the person is still currently mentally ill and dangerous.

The regulations of the Office of Mental Health pertaining to conditional release expressly provide that it is meant to be a less restrictive form of care and treatment, which is preferable to continuation of institutionalization:

The long-term rehabilitation of mentally disabled persons is promoted by maintenance of relationships with other persons and agencies in the community, avoidance of institutionalization, and minimization of disruption of life rhythms. The civil rights of mentally disabled persons require that such persons be treated and served in the least restrictive setting possible in which treatment or service goals can be met. Therefore, periods of inpatient services should be as short as possible in accordance with the individual patients's plan of care and treatment. This philosophy will, in many cases, require continued service to a patient on an outpatient basis at the conclusion of inpatient service.(38)

These regulations define "conditional release" as "ending the inpatient period of service. . . without ending the facility's legal tie to the patient. . . ."(39) The concept of "least restrictive alternative" is wholly consistent with conditional release, since it is meant to end institutional care before the maximum time allotted by statute or court order would have permitted.

The Commission has reported on general deficiencies with discharge planning,(40) and the general disuse of conditional discharge seems but a corollary of that deficiency. The conditional release statute not only places obligations upon the patient who is released earlier than the period for which he or she is committed, but, as importantly, it continues the legal obligation of the facility to ensure appropriate care and support services. The disuse of this law is not only unfair to patients who might be released early, and aided in readjustment in the community, but it also would prove to be a benefit to the public for potentially dangerous patients who might revert to such behaviors given the stresses of sudden release without adequate support and follow-up in the community.

Mental hospitals are not prisons. Ultimately, there will be a need to release patients with mental illness who have a history of violent acts or problems functioning in the community. In these cases, conditional release has been shown to be very effective when it is well planned and executed, i.e., when there is a good so-called "fit" between a patients needs and the prescribed conditions and available services.(41)

A statute that has such a long history, with legislative renewals and modifications, deserves a fair trial. There is little excuse for its current disuse.

1. In the Matter of R.H.: A Patient at Manhattan Psychiatric Center, (April 1995), from the Preface.

2. G. McCafferty & J. Dooley, Involuntary Outpatient Commitment: An Update, Mental and Physical Disability L. Rep. 277 (May-June 1990).

3. N.Y. Mental Hyg. Law [MHL] �9.61 (L. 1994, c. 560, sec. 3).

4. MHL 29.15 (L.1975, c. 804).

5. Governor's Memorandum of Approval, Nos. 79 & 80, at 2 (1975).

6. Letter to the Governor dated August 4, 1975, contained in the bill jacket, L. 1975, c.804.

7. Institute of Law, Psychiatry and Public Policy, Mandatory Outpatient Treatment of the Mentally Ill: Problems and Prospects, Appendix IV, Implementing Mandatory Outpatient Treatment: Problems in Design and Enforcement 18 (June 1988) (cited in McCafferty & Dooley, supra note 2, at 283 n.15).

8. J.D. Bloom, M.D., & M.H.Williams, Oregon's Experience with Insanity Acquittees, 22 Psychiatric Annals 579 (1992); D.A. Bigelow, et al., Costs of Managing Insanity Acquittees Under a Psychiatric Security Review Board System, 41 Hosp. & Community Psychiatry 613 (June 1990); J.D. Bloom, M.D., et al., Evaluation and Treatment of Insanity Acquittees in the Community, 14 Bull. Am. Acad. Psychiatry & Law 231 (1986).

9. Hereinafter "Old MHL," which specifically refers to the provisions of the Mental Hygiene Law of 1927, before its first major revision in 1972.

10. L.1919, c. 633, � 38.

11. L.1927, c. 426, � 138.

12. L.1936, c. 563, � 16.

13. Id.

14. Id.

15. L.1946, c. 472,  4.

16. Bill Jacket, Senate Bill 1541, at 8 (citing Memorandum of State of New York Department of Mental Hygiene, Apr. 14, 1946) (emphasis added).

17. L.1961, c. 429, � 3.

18. Id.

19. Id.

20. In general, Criminal Procedure Law �330.20 sets out the procedures to be followed for the disposition of insanity acquittees after a verdict or plea of not responsible by reason of mental disease or defect. N.Y. Crim. Proc. Law �330.20 (McKinney 1994).

21. Bill Jacket, Senate Bill 2945, at 17 (citing Memorandum of Department of Mental Hygiene, Apr. 1961).

22. L.1966, c. 891, � 1, repealing L.1961, c. 429, � 3.

23. Bill Jacket, Senate Bill 5641, at 70 (citing Memorandum of Executive Chamber filed with Senate Bill Number 5641, 1972).

24. Id. at 19 (citing Memorandum of the State of New York Law Revision Commission on the Recodification of the Mental Hygiene Law, May 1, 1972) (emphasis added).

25. L.1975, c. 804,  5.

26. This service is now known as the Mental Hygiene Legal Service.

27. 722 F.2d 960 (2d Cir. 1983).

28. Id. at 975 (citations omitted) (emphasis added).

29. MHL 29.15(c).

30. Id.

31. MHL 29.15(d).

32. Project Release, 722 F.2d at 974.

33. MHL 29.15(e).

34. Pursuant to the regulations governing conditional release, "[c]onditional release means the act of ending the inpatient period of service to a patient without ending the facility's legal tie to the patient under . . . the Mental Hygiene Law." N.Y. Comp. Codes R. & Regs. [N.Y.C.R.R.] tit. 14, � 36.2(b) (1977).

35. 14 N.Y.C.R.R., � 36.1.

36. 85 N.Y.2d 295, 624 N.Y.S.2d 99 (1995).

37. 206 A.D.2d 4, 618 N.Y.S.2d 660 (1st Dep't 1994).

38. 14 N.Y.C.R.R. �36.1 (emphasis added). N.B., although MHL Sec. 29.15 (b) describes "conditional release" as a "more restrictive placement," it does so only in the context of comparing it to an unconditional discharge for a voluntary patient.

39. 14 N.Y.C.R.R. �36.2

40. Discharge Practices of Inpatient Psychiatric Facilities (August 1988).

41. Kirk Heilbrun, Ph.D., et. al., Community Placement of Residential Programs and Person-Situation Fit, 22 Bull. Am. Acad. Psychiatry & Law 551 (1994). See also, Ingo Keilitz, Empirical Studies of Involuntary Outpatient Civil Commitment: Is It Working? 14 Mental & Physical Disability L. Rep. 368 (July-Aug. 1990)

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