THE EXTENT OF POWERS UNDER KENDRA'S LAW

Matter of Raymond G., 119 AD 3d 685 - NY: Appellate Div., 2nd Dept. 2014:

"The petitioner commenced this proceeding pursuant to Mental Hygiene Law § 9.60 seeking an order directing Raymond G. to comply with Assisted Outpatient Treatment (hereinafter AOT). The petition alleged that Raymond G. was a person over 18 years of age suffering from mental illness, was unlikely to survive safely in the community without supervision, had a history of lack of compliance with treatment for mental illness, and had been hospitalized at least twice within the preceding 36 months. The petition was supported by an affirmation of Dr. Evelyn Wasserman, a psychiatrist who had evaluated Raymond G. and determined that he met the statutory criteria for AOT, as well as a prepared treatment plan worksheet pursuant to Mental Hygiene Law § 9.60, a medication worksheet, and an alcohol/substance abuse treatment worksheet, outlining the treatment and medications Dr. Wasserman recommended.

At the hearing on the petition, Dr. Wasserman, the petitioner's only witness, testified as to her evaluation and diagnosis of Raymond G., his extensive history of treatment noncompliance and resulting hospitalizations, and his need for an AOT order. She described the AOT plan she recommended, and opined that it was the least restrictive feasible and appropriate alternative for Raymond G. In her testimony, Dr. Wasserman mentioned that Raymond G. owned or possessed a vehicle to which he had unrestricted access; however, she did not opine as to whether he 686*686 should be prevented from driving. Thereafter, in an order and judgment dated January 13, 2014, the court granted the petition, directed that Raymond G. receive AOT, and further directed that any vehicle he operated or possessed be impounded. Raymond G. appeals from so much of the order and judgment as directed the impoundment of the subject vehicle.

Mental Hygiene Law § 9.60, commonly known as Kendra's Law, "provides a framework for the judicial authorization of involuntary outpatient treatment programs for persons suffering from mental illnesses" (Matter of William C., 64 AD3d 277, 279 [2009]). It sets forth, inter alia, the types of outpatient services that may be ordered by the court as part of an AOT plan, the requirements for the petition, and the procedures for a hearing on the petition (see Mental Hygiene Law § 9.60 [a] [1]; [e] [2]-[3]; [h] [1]).

The statute defines AOT as follows: "`assisted outpatient treatment' shall mean categories of outpatient services which have been ordered by the court pursuant to this section. Such treatment shall include case management services or assertive community treatment team services to provide care coordination, and may also include any of the following categories of services: medication; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; educational and vocational training or activities; alcohol or substance abuse treatment and counseling and periodic tests for the presence of alcohol or illegal drugs for persons with a history of alcohol or substance abuse; supervision of living arrangements; and any other services within a local services plan developed pursuant to article forty-one of this chapter, prescribed to treat the person's mental illness and to assist the person in living and functioning in the community, or to attempt to prevent a relapse or deterioration that may reasonably be predicted to result in suicide or the need for hospitalization" (Mental Hygiene Law § 9.60 [a] [1]).

The statute requires that the petition be accompanied by an affirmation or affidavit of an examining physician who recommends AOT (see Mental Hygiene Law § 9.60 [e] [3] [i]), and directs that the court "shall not order [AOT]" unless it is provided with a proposed written treatment plan developed by a physician appointed by the applicable community services or hospital director, which includes "all categories of services, as set forth in [§ 9.60 (a) (1)], which such physician recommends that the [patient] receive," "no later than the date of the hearing on the petition" (Mental Hygiene Law § 9.60 [i] [1]). Further, 687*687 the statute provides that the court "shall not order [AOT] unless [the] physician appearing on behalf of [the] director testifies to explain the written proposed treatment plan [and] state[s] the categories of [AOT] recommended, the rationale for each such category, [and] facts which establish that such treatment is the least restrictive alternative" (Mental Hygiene Law § 9.60 [i] [3]).

Following the hearing, the court "may" order AOT if it finds by "clear and convincing evidence that the [patient] meets the criteria for [AOT], and there is no appropriate and feasible less restrictive alternative" (Mental Hygiene Law § 9.60 [j] [2]). The order must include specific findings "by clear and convincing evidence that the proposed treatment is the least restrictive treatment appropriate and feasible for the [patient]," and "state an [AOT] plan, which shall include all categories of [AOT], as set forth in [§ 9.60 (a) (1)], which the [patient] is to receive" (Mental Hygiene Law § 9.60 [j] [2]). The order "shall not include any such category that has not been recommended in both the proposed written treatment plan and the [physician's hearing] testimony" (Mental Hygiene Law § 9.60 [j] [2]).

In light of this statutory framework, the Supreme Court's inclusion of the impoundment provision in the AOT order here was improper. Impounding a patient's vehicle is not among the specifically enumerated types of services Mental Hygiene Law § 9.60 (a) (1) authorizes, nor does it fit within the final category listed in that paragraph of "any other services within a local services plan developed pursuant to [Mental Hygiene Law article 41], prescribed to treat the person's mental illness and to assist the person in living and functioning in the community, or to attempt to prevent a relapse or deterioration," inasmuch as it was not "prescribed" by Dr. Wasserman, and does not fall within the scope of article 41 (see Mental Hygiene Law §§ 41.01, 41.03 [15]; cf. Matter of William C., 64 AD3d at 287). Moreover, the impoundment of Raymond G.'s vehicle was not included in the written treatment plan Dr. Wasserman recommended, nor was it recommended, explained, and deemed the least restrictive feasible and appropriate alternative by her when she testified at the hearing. As such, the court lacked the authority to issue such a directive as part of the AOT plan (see Mental Hygiene Law § 9.60 [i] [1], [3]; [j] [2]; Matter of Gail R. [Barron], 67 AD3d 808, 811-812 [2009]).

Accordingly, that portion of the AOT order which directed that Raymond's vehicle be impounded must be reversed.

DEALING WITH PROBLEM ADULTS - LEGAL RIGHTS

Another tool one must be aware of is Kendra's Law, a New York State law concerning involuntary outpatient commitment. It grants judges the authority to issue orders that require people who meet certain criteria to take psychiatric drugs, regularly undergo psychiatric treatment, or both. Failure to comply could result in commitment for up to 72 hours. Recently, it has been the subject of debate as to whether it should continue. Here is an editorial from the New York Times:

"Make Kendra’s Law Permanent
By E. FULLER TORREY

ELEVEN years ago, when the New York Legislature passed Kendra’s Law, few could have foretold what a resounding success it would be. At the time lawmakers were searching for a useful response to the tragic death of 32-year-old Kendra Webdale, who was pushed in front of a subway train in Manhattan by a stranger who had untreated schizophrenia.

The law, initially intended for a trial period of five years, permits state judges to order closely monitored outpatient treatment for a small subset of seriously mentally ill people who have records of failing to take medication, and who have consequently been rehospitalized or jailed or have exhibited violent behavior.

In 2005, Kendra’s Law was extended for another five years. In all, more than 8,000 people have been treated under its provisions, and the results have been striking. A 2005 study of more than 2,700 people to whom the law was applied found that, after treatment, the rate of homelessness in the population fell by 74 percent, the number who needed to be rehospitalized dropped by 77 percent and the number arrested fell by 83 percent. And a study published this year found that people receiving treatment under Kendra’s Law were only one-fourth as likely to commit violent acts, had a reduced risk of suicide and were functioning better socially than members of a control group.

It’s hard to imagine a stronger argument for making the law permanent. And yet, as it comes up for renewal this month, the state Office of Mental Health is recommending only a five-year extension. Why the hesitation? Apparently, the Office of Mental Health is ambivalent about its star performer. In its latest five-year Statewide Comprehensive Plan for Mental Health Services, Kendra’s Law is not even mentioned, and the program it supports — assisted outpatient treatment — is referred to briefly only twice.

Perhaps state mental health officials are responding to critics who consider the law politically incorrect because it mandates psychiatric treatment by court order, supposedly violating the patients’ freedom to choose or forgo treatment. But these are people whose illness interferes with their ability to understand that they are sick and need medication. They do not have the choice to live freely and comfortably, but only to be homeless, in jail or in a psychiatric hospital.

The people who could be treated under Kendra’s Law account for only one in 10 seriously ill psychiatric patients. But when these people are untreated, they also make up one-third of the homeless population, and at least 16 percent of the jail and prison population. These people are ubiquitous in city parks, public libraries and train stations. And a small percentage become dangerous, even homicidal.

The law has been a model of success, not only in New York but also in 44 other states that now have similar laws (including, most recently, New Jersey and Maine). Unfortunately, these laws are too rarely used. California, for example, has passed an equivalent to Kendra’s Law known as Laura’s Law, but has not enforced it. If it had, it might have prevented 36-year-old John Patrick Bedell from wandering the country last March, taking orders from his psychotic brain, despite his family’s frantic attempts to get treatment for him. Mr. Bedell ultimately shot two security guards at the Pentagon, and was shot and killed by the officers he injured.

Kendra’s Law saves lives. By keeping patients on medication, it also saves money that might otherwise be spent on rehospitalization, prosecution and incarceration. New York should take lasting advantage of both benefits by making the law permanent.


E. Fuller Torrey, the founder of the Treatment Advocacy Center, is the author of “The Insanity Offense: How America’s Failure to Treat the Seriously Mentally Ill Endangers Its Citizens.""