Understanding Mental Hygiene Law in New York - Assisted Outpatient Treatment
Individuals with mental illnesses often require multiple hospitalizations during their lifetime. Many patients thrive in the hospital setting where professionals manage their treatment and medications. Unfortunately, some patients do not voluntarily continue their treatment upon discharge from the hospital. As a result, their behavior decompensates, thus necessitating another hospitalization. New York State Mental Hygiene Law provides for assisted outpatient treatment (commonly known as “Kendra’s Law”), which is designed to help individuals with mental illnesses function successfully out of the hospital. The goals of the law are to provide the oversight necessary for a less restrictive alternative to involuntary hospitalization and to avoid the “revolving door” of multiple hospitalizations.
Kendra’s Law authorizes court-ordered assisted outpatient treatment (AOT) for persons with mental illness who, in view of their treatment history and present circumstances, are unlikely to survive safely in the community without supervision. AOT refers to services that a person may be required to 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. Individuals in the community, or those about to return to the community from hospitals, who are suffering from mental illness and are unlikely to survive safely without supervision, may be required to accept AOT if a court determines that the eligibility criteria discussed below are met and that AOT is the least restrictive alternative for the patient.
To be eligible for AOT, an individual must meet the following criteria:
- 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
(a) at least 2 hospitalizations for mental illness in the preceding 36 months, or (b) resulted in 1 or more acts of violence toward self or others, or threats of serious physical harm toward self or others, within the preceding 48 months (when calculating the 36 month or 48 month “look-back” period, the duration of the current hospitalization, or of any hospitalization which ended in the 6 months immediately preceding the filing of the petition, is excluded);
- 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, be in need of AOT to avoid a relapse or deterioration that would likely result in serious harm to the person or others; and
- Be likely to benefit from AOT.
The AOT process begins by the filing of a petition with the county court or the supreme court for the county where the subject individual is present or is believed to be present. The petition must set forth facts demonstrating that the individual in question meets criteria for AOT and can be filed by (i) a roommate, (ii) certain family members, (iii) the director of a hospital where the person is hospitalized, (v) a qualified psychiatrist who is either treating the person or supervising the person’s treatment, a qualified psychologist or social worker who is currently treating the person, (vi) the director of a public or charitable organization providing mental health services or housing, (vii) the local director of community services or social services official, or (viii) a parole or probation officer assigned to supervise the person.
In addition, the petition must be accompanied by an affidavit of an examining physician stating that, among other things, the physician examined the patient within 10 days of filing the petition and that the patient meets the criteria for AOT. The examining physician also must prepare a treatment plan for the patient. The treatment plan must include care coordination and management services, as well as any necessary medication, drug testing, educational and vocational training, group therapy, substance abuse treatment and counseling, and supervision of living arrangements. The examining physician must permit the patient, his or her treating physician, and, if requested by the patient, a relative, close friend or other concerned individual to actively participate in the development of the treatment plan.
The petition must be served on a number of people or entities, including the patient, his or her nearest relative, the Mental Hygiene Legal Services (MHLS), any health care agent appointed in a proxy executed by the person, and the appropriate county AOT program director.
The Court Hearing
Upon receipt of the petition, the court is required to set a hearing. The examining physician must testify at the hearing and must state the facts and rationale supporting the need for AOT. The physician also must explain in the treatment plan why the proposed treatment is the least restrictive alternative. If the treatment plan includes medication, the physician must explain the types or classes of medication recommended, the beneficial and detrimental physical and mental effects of the medication, and whether the medication should be self–administered or administered by authorized professionals.
The patient has the right to legal representation by MHLS, or by other counsel at the patient’s expense, at all stages of the proceeding. The patient may testify (but is not required to do so), and may call witnesses and examine any adverse witnesses. A written treatment plan must be furnished to the court before an order for AOT will be issued.
Disposition of the Proceeding
If the court concludes after all evidence is presented that the criteria for AOT are not met, the petition must be dismissed. If the court determines, that the criteria for AOT are met, the initial order will require the person to receive AOT for up to 6 months from the date of the order.
The order must specifically state findings that the proposed treatment is the least restrictive treatment that is appropriate and feasible, and must state the categories of treatment required. No treatment may be ordered unless the examining physician recommends it and it is included in the written treatment plan. The order must also require the director of mental health services in county which will oversee the treatment to provide for and make arrangements for the services described in the order.
The initial AOT order may be for a period of up to 6 months. The initial order can be extended for additional successive periods of up to 1 year. The same procedure used to commence the initial proceeding is used to secure an order for extension.
Non-Compliance with an Order of AOT
If a patient fails to comply with an AOT 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 AOT order and that the patient may be in need of involuntary admission to a hospital, the physician may recommend that the patient be transported to a hospital for examination. The patient may be retained for up to 72 hours to determine if he or she is in need of inpatient care and treatment. The patient must be released at the end of 72 hours unless he or she is admitted as an inpatient pursuant to the provisions of the Mental Hygiene Law pertaining to inpatient hospital admissions.