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.