RE: Bill 68, An Act to Amend the Mental Health Act
and the Mental Health Consent Act, 1996
Testimony Before 
the Standing Committee on General Government
of the Legislative Assembly of Ontario

May 15, 2000

Tammy Seltzer, Esq.
Judge David L. Bazelon Center for Mental Health Law
1101 15th Street, NW, Suite 1212
Washington, DC 20005
(202) 467-5730, ext. 16
(202) 223-0409 (fax)

Summary

               Outpatient commitment is a simplistic response that cannot
compensate for a lack of appropriate and effective services in the
community. In fact, the enforcement demands of outpatient commitment will
divert resources away from treatment. 
               Proponents of outpatient commitment have misrepresented the
research.  Data on outpatient commitment show it confers no additional
benefit above access to effective community services. In one of only two
controlled studies, individuals given the option of enhanced community
services did just as well as those under commitment orders who had access to
the same services.  Other studies have serious flaws that render their
findings meaningless.
               There are enormous practical problems in implementation of
outpatient commitment, and potentially high costs for law enforcement. The
unintended consequences of outpatient commitment can be traumatic and
tragic.
               The threat of forced treatment, with medication that has
harmful side effects, often deters individuals from voluntarily seeking
treatment. At best, outpatient commitment undermines the therapeutic
alliance between the provider and consumer of mental health services.
Greater sensitivity is needed on the part of mental health professionals in
working with consumers to find the most effective and acceptable treatment. 
Introduction
        The Judge David L. Bazelon Center for Mental Health Law is a
nonprofit legal advocacy organization based in Washington D.C. Our name
honors the federal appeals court judge whose landmark decisions pioneered
the field of mental health law, and our advocacy is based on the principle
that every individual is entitled to choice and dignity. For many people
with mental disabilities, this means something as basic as having a decent
place to live, supportive services and equality of opportunity. 
        Since 1972, we have successfully challenged many barriers on behalf
of people with mental disabilities. Our precedent-setting litigation has
outlawed institutional abuse and won protections against arbitrary
confinement. In the courts and in Congress, our advocacy has opened up
public schools, workplaces, housing and other opportunities for community
life. 
        Today the Bazelon Center is the leading national legal advocate for
people with mental illness and mental retardation. Our current work is
focused on: 
               Reform of public systems to serve adults, children and older
people with mental disabilities in their communities. 
               Access to housing, health care and support services of
consumers' choice. 
               Services and support to help children with disabilities grow
up in families, including access to federal disability benefits (SSI) and
home- and community-based care for children with serious emotional
disorders. 
               Protections against discrimination-in housing, employment
and public services. 
        I am a staff attorney at the Bazelon Center, where I work on issues
such as outpatient commitment and criminalization of persons with mental
illness.  I recently completed a study of state outpatient commitment
statutes, which can be found on our web site at
http://www.bazelon.org/iocchartintro.html.  I have spent considerable time
monitoring the implementation of Kendra's Law in New York state and am in
close contact with researchers, lawyers, and advocates around the country
who are working on this issue.
Bazelon's Position Statement on Outpatient Commitment
        The Bazelon Center opposes all involuntary outpatient commitment as
an infringement of an individual's constitutional rights.  Outpatient
commitment is especially problematic when based on criteria that cannot be
accurately assessed on an individual basis and are improperly rooted in
speculation. Neither do many of the standards used constitute imminent,
significant physical harm to self or others-the only standard found
constitutional by the US Supreme Court. As a consequence, these are not
legally permissible measures of the need for involuntary civil
commitment-whether inpatient or outpatient-of any individual. 
        The Bazelon Center supports the right of each individual to fully
participate in, and approve, a treatment plan and to decide which services
to accept. The Bazelon Center encourages the articulation of treatment
preferences in advance through the use of advance directives and/or a
legally recognized health care agent.
        Outpatient commitment is a dangerous formalization of coercion
within the community mental health system. Such coercion undermines consumer
confidence and causes many consumers to avoid contact with the mental health
system altogether.
        The Bazelon Center considers outpatient commitment a misguided
approach to a systems problem. The pervasive lack of appropriate, accessible
and acceptable services is the real issue. Involuntary outpatient commitment
appears to increase the use of services because it forces the system to make
those services available to people for whom a court has ordered treatment.
Expanding service options would accomplish the same ends without coercion,
without the trauma of a court appearance and without violating the
individual's right to make decisions about his or her own health care. 
Research on Outpatient Commitment has Been Misrepresented
        Before making the sweeping changes that proponents of involuntary
outpatient commitment suggest, policymakers-and reporters covering this
issue-should review the research literature on involuntary outpatient
commitment. The studies-relatively few in number-show that it confers no
benefit beyond access to effective community services.
        Involuntary "outpatient commitment"-a statute authorizing courts to
require an individual to accept outpatient mental health treatment or
hospital release conditioned on treatment compliance-is being offered as a
solution to the problem of people with mental illness in jails, homeless on
the streets or acting out disruptively or violently in society. Proponents
argue that only with such laws can certain individuals be persuaded to
utilize mental health services. Yet most of the studies on which they rely
are seriously flawed, and some are presented in misleading ways (see
MADNation's warning to the media and the public at
www.madnation.org/news/oppressors/warning.htm).  I have attached several
letters from people whose studies have been cited as justifying the use of
outpatient commitment in which the researchers assert that their work has
been misused and misinterpreted.
Controlled Trial Studies Find No Statistically Significant Effect on
Rehospitalization Rates
        The only two controlled studies have been conducted in New York City
(the Bellevue study) and North Carolina. The Bellevue study found that
outpatient commitment had no statistically significant effect for outpatient
commitment on rehospitalization rates or days spent in hospital. The study
also found that outpatient commitment did not improve compliance with
medication and continuation of treatment, or reduce the number of arrests or
violent acts committed. The overall findings of the recently released North
Carolina study support the Bellevue finding that outpatient commitment has
no effect on hospital use. The North Carolina study also found mixed results
for subgroups, depending on the length of outpatient commitment, that
require further investigation. Hospital use actually increased for those
with a short duration of outpatient commitment (six months or less). The
only group for whom hospital use decreased was the group who received more
intensive services and outpatient commitment of six months or longer. 
Final Report: Research Study of the New York City
Involuntary Outpatient Commitment Pilot Program, (at Bellevue Hospital).
Policy Research Associates, December 4, 1998
(www.prainc.com/IOPT/opt_toc.htm) 
        The Bellevue study is one of the most comprehensive and best
designed studies of outpatient commitment released to date. The question it
sought to answer was whether an outpatient commitment order by a court
contributed to any additional beneficial results when compared with
provision of intensive services only. All participants received the
intensive services; only those subject to the court order were compelled to
undergo treatment.
        The findings are conclusive. Comparing those subjected to outpatient
commitment with those who were offered access to the same intensive
services, the study found:
                *  No additional improvement in patient compliance with
treatment
                *  No additional increase in continuation of treatment
                *  No differences in rates of hospitalization
                *  No differences in lengths of hospital stay
                *  No difference in arrests or violent acts committed.
Because people were randomly assigned to the two groups, the "difficult"
cases were evenly distributed between the two approaches.
        The results of the Bellevue study help to explain why other studies
of outpatient commitment have been misread to support its effect.
Individuals subjected to a court order for outpatient treatment are provided
services-often intensive services never before available to them. Not
surprisingly, many of them do better. This is the very reason science is
based on controlled-trial studies wherever possible. In a controlled trial,
an attempt is made to isolate the variables and make it easier to identify
the true effect of any one factor. While this is not always possible or easy
to do, results from a controlled trial, like the Bellevue study, are more
accurate than studies using other approaches.
                Specifically, this study found:
                *  No statistically significant differences in the
percentage of clients who discontinued treatment (27% court order, 26%
intensive services only). Clients in assertive community treatment had the
lowest dropout rate. This made it clear that assertive community treatment,
not the court order, increases the likelihood that individuals will accept
continued treatment.
                *  The assertiveness of the coordinating team ensured a
level of care previously not experienced by providers or patients. Enhanced
community services for all participants reduced rehospitalization rates
(87.5% to 51.4% for those who did not have court orders, 80.1% to 41.6% for
those with court orders.).
                *  No statistically significant differences existed in
compliance with case management services. (71% for court-ordered clients and
61% for intensive services only).
                *  No statistically significant differences in the level of
violence committed by either group. Few arrests were found (16% intensive
services only, 18% court-ordered). There were no differences in any arrest,
the number of arrests, or more serious charges.
                *  No statistically significant differences in medication
compliance rates between the two groups. 
                *  No statistically significant differences in quality of
life or symptomatology between the two groups. 
        The study provides strong evidence that outpatient commitment has no
intrinsic value. Where it does appear to have had an effect, this is because
it has forced the mental health system to commit itself to helping consumers
find acceptable and effective treatment for their illnesses. 
All other studies of outpatient commitment have serious methodological
flaws, as the following summary shows, and their results have been
misunderstood and misrepresented.
                       Swartz, M.S. et al., Can Involuntary Commitment
Reduce Hospital Recidivism? Findings From a Randomized Trial with Severely
Mentally Ill Individuals. American Journal of Psychiatry, 12: 1968-1974
(1999). 
        The findings of this North Carolina study, which has serious
limitations as discussed below, agree in part and disagree in part with the
Bellevue study discussed above. Overall, hospital admissions and days did
not differ significantly for participants randomly assigned to outpatient
commitment (of any length) and those in the comparison control group, who
were not under commitment. Since only the hospitalization findings have been
published, it is not yet possible to compare the interpretation of the total
effect of outpatient commitment on the quality of life of the participants,
medication compliance and other important concerns.
                *  Short term outpatient commitment increases hospital use
and decreases participant cooperation. 
        Outpatient commitment of less than 180 days actually increased
hospital use. Participants on short outpatient commitment spent 35 percent
longer, 38 days on average, in the hospital, compared to an average of 28
days for those not on outpatient commitment. The authors attribute this to
an increased sense of coercion and decreased autonomy among participants
under outpatient commitment.
                *  Long-term outpatient commitment and intensive services
decreased hospital outcomes. 
        Unlike the New York study discussed above, this study found reduced
hospital stays only for participants who remained under outpatient
commitment for more than six months and who also received intensive services
(a median of 7.5 services per month). Neither extended outpatient commitment
nor higher level of service alone reduced the chance of hospital admission.
The authors state, "These findings suggest that outpatient commitment may
exert most of its effect on providers." In other words, the outpatient
commitment appears to increase the delivery of services to participants
under outpatient commitment. The authors state that, "This use of outpatient
commitment is not a substitute for intensive treatment; it requires a
substantial commitment of treatment resources to be effective."
        The North Carolina study has several weaknesses of which
policymakers should be aware: 
               Unlike the New York study, the North Carolina study has
released findings only on one area, hospital use. The impact of outpatient
commitment on violent behavior, social functioning, family and criminal
justice outcomes have not yet been published. 
               Those who were under outpatient commitment for longer
periods were not randomly assigned. In other words, individuals under
outpatient commitment for shorter periods differed from those under
outpatient commitment for longer periods. Any differences between these
groups are not reported. 
               The article does not describe service use among the
non-outpatient commitment comparison group. It is difficult to assess the
impact of outpatient commitment on the service delivery system. 
        The other studies cited as support for outpatient commitment have
even more serious flaws.  Most, for example, used samples that were too
small to draw any conclusions.  A complete analysis of these studies can be
found on our web site at http://www.bazelon.org/opcstud.html.
Outpatient Commitment Rarely Used
        Outpatient commitment statutes are often enacted hurriedly,
typically in response to a single, well-publicized violent incident
involving a person with mental illness.  In New York, Kendra's Law was
rushed through the legislature after the tragic death of Kendra Webdale, a
young woman who was pushed in front of a subway train by Andrew Goldstein.
When the bright lights fade, however, most states have abandoned the use of
outpatient commitment.   
        The National Association of State Mental Health Program Directors
(NASMHPD), an independent body that has taken no official position on the
use of outpatient commitment, surveyed all fifty states and the District of
Columbia.  (Attached)  Although an overwhelming majority of the states have
outpatient commitment laws, NASMHPD found that most states use outpatient
commitment only rarely.  We have seen the same result in New York.  When
Kendra's Law was passed, the state estimated that 10,000 people would be
placed under outpatient commitment orders.  More than six months later,
however, only about 100 people have such orders.
        We can only speculate about why states have discarded outpatient
commitment.  New York's experience may be illustrative.  In New York, after
the initial elation of Kendra's Law subsided, policymakers were made aware
of two very disturbing facts.  Andrew Goldstein did not reject mental health
treatment; instead, documents uncovered by a journalist revealed that Mr.
Goldstein had diligently and persistently sought mental health treatment.
The state had pushed through legislation designed to force unwilling or
unable people to accept mental health treatment only to realize that it was
the mental health system that was unwilling or unable to provide appropriate
treatment.  This unwelcome news lead to the second realization, that people
with mental illness would be forced to comply with treatment that didn't
exist.  To avoid this embarrassment and legal liability, the state
immediately sought to authorize a significant increase in mental health
spending, committing resources that could have been made available without
introducing the coercion inherent in outpatient commitment. 
        Perhaps outpatient commitment has fallen into disuse because states
found that it does not produce what proponents promise.  Perhaps the
practice has fallen into disuse because states mistakenly believed that
outpatient commitment was a magic bullet that would help them reduce, not
increase, their mental health budgets.  Perhaps outpatient commitment is
rarely used because service providers, who entered the profession because
they wanted to help people and whose effectiveness depends on establishing
trust, feel uncomfortable about their new role as mental health police who
are duty-bound to report their clients' missteps with treatment.  As the
Bellevue study demonstrates, intensive community-based mental health
services are the key to addressing the needs of people with serious mental
illness.
Unintended Consequences of Outpatient Commitment
        Outpatient commitment, when it is used, may have several unintended
consequences.  Because the problem is a lack of services, not individual
failings, outpatient commitment can become a self-perpetuating vehicle for
accessing the few services that are available.  Service providers may feel
compelled to promote such orders for clients they know would otherwise
accept treatment voluntarily had the services been accessible to them.  
        The use of coercion is not benign.  The court process and subsequent
monitoring can be frightening and alienating, perhaps particularly so for
people with mental illness.  Studies have shown that fear of coercion makes
people with mental illness less likely to seek services voluntarily.  If
fewer people are seeking services voluntarily, the mental health system may
not have contact with clients until they are more seriously ill.
        Enforcement of outpatient commitment orders can have unfortunate,
even tragic, consequences.  In many states, a person can be picked up and
held for evaluation for commitment to a psychiatric hospital.  Although this
may sound innocuous to some people, but it often is not. In Michigan, for
example, a gentleman who refused on three occasions to make himself
available to the ACT [Assertive Community Treatment] team was subjected to
police breaking into his apartment, spraying him with pepper spray,
handcuffing him, and transporting him to the hospital, where he was forcibly
injected with Haldol. The man was released within days because he did not
meet the criteria for inpatient commitment; but the experience was
traumatic.  In a recent case, a woman was so traumatized by police who were
executing a pick-up order that she had a heart attack and died.  Before she
died, she was crying and begging them not to take her to see any more
doctors.
        Some states allow people to be jailed for failure to comply with an
outpatient commitment order.  We know that jails are not therapeutic
environments for people with mental illness.  In jail, they often become
victims of sexual assault and other violent acts and commit suicide at many
times the rate of other inmates. 
Conclusion
                Outpatient commitment has been touted as a miracle cure for
everything from homelessness to the high costs of psychiatric
hospitalization for people in crisis.  The research  doesn't support those
claims.  The experience of the many states that have tried and abandoned the
practice doesn't support those claims.  There are no short-cuts to treating
people with serious mental illness.  I urge this committee to use its
authority and resources to ensure the availability of appropriate,
effective, and voluntary services in the community.

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