Mental Illness/Assisted Outpatient Treatment
Many mentally ill people do not function at a level that would enable them to live and work independently. Supervised conditions for the chronic or severely incapacitated mentally ill person include an array of services, treatment programs, work and living conditions. Each one of these options is geared towards the person’s level of functioning as well as the mental illness itself. The guardian must work together with the ward to assess the ward’s living situation, work environment, and treatment program that is appropriate to the functional level of the ward and that addresses the ward’s own needs and goals.
Guardians appointed under Article 81 of the Mental Hygiene Law do not have the power to force someone into treatment or to comply with treatment against their wishes. However, another law has recently been passed in New York State, called “The Assisted Outpatient Treatment” — or Kendra’s Law—that can be used to address the issue of noncompliance.
Kendra’s Law or Assisted Outpatient Treatment provides for assisted outpatient treatment of certain persons with mental illness that, in view of their treatment history and present circumstances are unlikely to survive safely in the community without supervision. Those individuals in the community, or those about to return to the community from correctional facilities or hospitals, who are suffering from mental illness and are unlikely to survive safely without some formal supervision, may be found in need of “assisted outpatient treatment.”
Assisted Outpatient Treatment is a general term describing all the types of services that an individual with mental illness may receive in the community, including case management services, medication, drug testing, educational and vocational training, group therapy, substance abuse treatment and counseling, and supervision of living arrangements. Before a court may order assisted outpatient treatment, the judge must be satisfied that assisted outpatient treatment is the least restrictive alternative for the patient.
In order to be found in need of Assisted Outpatient Treatment, an individual must:
- Be at least 18-years-old and have a mental illness;
- Be unlikely to survive safely in the community without supervision, based on a clinical determination;
- Have a history of lack of compliance with treatment that has lead to at least two hospitalizations for mental illness in the preceding 36 months, or resulted in one or more acts of violence toward self or others, or threats of serious physical harm toward self or others, within the preceding 48 months;
- Be unlikely to voluntarily participate in the treatment necessary to allow the person to live safely in the community;
- In view of the person’s treatment history and current behavior, he or she is in need of assisted outpatient services to avoid a relapse or deterioration that would likely result in serious harm to the mentally ill person or others; and
- Be likely to benefit from assisted outpatient services.
Every Assisted Outpatient Treatment application has a court hearing. The process begins by the filing of a petition with the court. Family members or guardians can initiate these petitions. However it is best to call the Director of Mental Health Community Services in the county where the ward lives. You can describe your ward’s condition and see if the Director feels the ward meets the eligibility criteria. If the court determines the person meets the criteria for assisted outpatient treatment, the initial order will require the person to receive assisted outpatient treatment services for up to six months from the date that the order was signed. The Assisted Outpatient Treatment Order can be extended by a similar process for successive periods of up to one year.
Non-Compliance with an Order of Assisted Outpatient Treatment
If a patient fails to comply with an Assisted Outpatient Treatment Order, his or her treatment team works with the patient to achieve compliance. If a physician determines that the person still has not complied with an Assisted Outpatient Treatment Order and that the patient may be in need of involuntary admission to a hospital, the physician may recommend that the patient be removed from the community for examination and transported to a county hospital, and be retained there for up to 72 hours to determine if he or she is in need of inpatient care and treatment. Any decision to keep the patient beyond the initial 72 hours must be in accordance with the procedures for involuntary admission under the Mental Hygiene Law. The refusal of the patient to take required medication, or the failure of a test to determine such medication compliance or to determine alcohol or drugs use, may be considered by the physician in reaching a clinical determination as to whether removal to a hospital for examination is necessary.
Legal Assistance for Patients
The Mental Hygiene Legal Service provides legal advice and assistance including representation in court hearings, for psychiatric patients who do not have their own lawyer. Mental Hygiene Legal Service is an agency of the New York State Supreme Court, and is not part of the Office of Mental Health or any psychiatric center. The staff of lawyers and social workers help patients understand and protect their rights. Mental Hygiene Legal Service staff can also provide information to family members.
Mental Hygiene Legal Services staff helps patients in several ways, including investigating complaints of patient abuse and mistreatment and representing patients who refuse medication. The lawyers of Mental Hygiene Legal Service will not represent family members of patients.
All patients, their families, and others who work on behalf of patients have the right to communicate freely and privately with Mental Hygiene Legal Services representatives at any time. Their names, office addresses and telephone numbers are posted at each psychiatric center and staff is required to provide this information to patients upon request. In addition, each psychiatric center’s switchboard can connect a caller to Mental Hygiene Legal Service or provide the telephone number. All services provided by the Mental Hygiene Legal Service are free.