Alexander J.

Nicas

KENDRA’S LAW: MOMENTUM HAS SHIFTED, BUT THE CASE ISN’T CLOSED YET.
EVEN WITH UNANIMOUS LEGISLATIVE SUPPORT, AND THE NEW YORK COURT OF
APPEALS BLESSING, FURTHER RESEARCH IS NECESSARY TO DETERMINE IF
KENDRA’S LAW IS THE LONG-RUN SOLUTION.

Alexander J. Nicas

I. Background

On a cold January day in 1999, Kendra Webdale was pushed off a subway platform and

killed by an oncoming train.1 Andrew Goldstein, a 29-year-old man with a long history of

mental illness, was the alleged perpetrator.2 The tragic circumstances surrounding Kendra

Webdale’s death terrified the community, and sparked a political debate that ultimately resulted

in the passage of Kendra’s Law. 3 Kendra’s Law, signed by Governor George Pataki in late

1999, created the statutory framework for court-ordered assisted outpatient treatment (“AOT4”)

in New York.5 The legislature believed there are “mentally ill persons who can function well

and safely in the community with supervision and treatment, but who without such assistance,

will relapse and require long periods of hospitalization,” and that “assisted outpatient treatment

… is compassionate, not punitive, will restore patients' dignity, and will enable mentally ill

persons to lead more productive and satisfying lives.”6

The legislature’s belief was well intended, but Kendra’s Law, and similar AOT programs

have sparked intense criticism. In light of Coleman v. State Supreme Court7, the first federal

court to hold that AOT does not violate an individual’s Fourteenth Amendment right to due

1
Editorial, After Kendra Webdale’s Death, N.Y. Times, Jan. 8, 1999, at A18.
2
Id.
3
Ch. 409, §1, 1999 N.Y. Laws S. 5762-A
4
Also called Involuntary Outpatient Commitment (“OPC”).
5
N.Y. MENTAL HYG. LAW §9.60 (McKinney 2009)
6
Ch. 409, §2, 1999 N.Y. Laws S. 5762-A
7
697 F.Supp.2d 493 (S.D.N.Y. 2010)

1
 Alexander J. Nicas

process, it would seem that AOT is here to stay. But, is that the desirable outcome?

This paper seeks to outline the issue from both points of view – pro and con, and utilize

newly released empirical data to weigh desirability from a public policy perspective. The crux of

the issue is that desirability is a subjective metric. Although the data may indicate that AOT is

successful in preventing incarceration or re-hospitalization, there is no doubt that AOT impinges

on an individual’s liberty. I believe that one’s opinion depends on how you view AOT. In other

words, does AOT provide an alternative to commitment? Or does it mandate some level of

treatment without choice? I believe that AOT is an autonomy enhancing policy that provides an

alternative to commitment, and a few recent studies seem to indicate that it may actually help

people stay on medication, out of jail, and out of the hospital, allowing them to live the most

normal life possible.

II. N.Y. Mental Health Law §9.60 (Kendra’s Law)

By enacting Kendra’s Law, the legislature created a process to identify those persons who

may not be able to survive safely in the community without greater supervision and assistance.

If a court order for AOT is issued, it will be sent to either the director of a hospital licensed or

operated by the Office of Mental Health (“OMH”), or a director of community services who

oversees the mental health program of a certain area. These facilities administer the treatment

order and report up to a program coordinator who is responsible for the oversight and monitoring

of AOT programs at various locations.

A. The Petition & Service of the Notice and Petition

The process begins with the filing of a petition in the supreme or county court in which

the subject is present or reasonably believed to be present.8 Specific family members may file a

8
N.Y. M.H.L. §960(e)

2
 Alexander J. Nicas

petition: a parent, spouse, adult child, or adult sibling.9 Even non-family members may also file

the petition.10 The petition must state facts that support petitioner’s belief that the subject meets

the criteria for AOT11, and must be accompanied by an affidavit of the physician who has

personally examined the subject no more than ten days prior to filing of the petition.12 In

addition to filing the petition in court, the petition must also be served on the subject, Mental

Hygiene Legal Services, the AOT program coordinator, and the appropriate director of

community services.13

B. Criteria for AOT

As stated above, the petition must state facts alleging that the subject of the petition: (1)

is eighteen years of age or older14; (2) is suffering from a mental illness15; (3) is unlikely to

survive safely in the community without supervision, based on a clinical determination16; (4) has

a history of lack of compliance with treatment for mental illness17; (5) is unlikely to participate in

outpatient treatment18; (6) is in need of assisted outpatient treatment in order to prevent a relapse

or deterioration which would be likely to result in serious harm to the person or others19; and (7)

is likely to benefit from assisted outpatient treatment.20 The fourth criteria – lack of compliance

with treatment – has two prongs that must be satisfied: (i) at least two hospitalizations for mental

9
Id.
10
Id. (stating that the following individuals may also file a petition: the director of a hospital in which the subject of the petition is hospitalized; or
the director of any public or charitable organization, agency or home providing mental health services to the subject of the petition or in whose
institution the subject of the petition resides; or a qualified psychiatrist who is either supervising the treatment of or treating the subject of the
petition for a mental illness; or a psychologist, licensed pursuant to article one hundred fifty-three of the education law, or a social worker,
licensed pursuant to article one hundred fifty-four of the education law, who is treating the subject of the petition for a mental illness; or the
director of community services, or his or her designee, or the social services official, as defined in the social services law, of the city or county in
which the subject of the petition is present or reasonably believed to be present; or a parole officer or probation officer assigned to supervise the
subject of the petition.)
11
Id. §960(e)(2)
12
Id. §960(e)(3) (stating also that the physician who submits the affidavit of examination may not be the petitioner)
13
Id. §960(f)
14
Id. §9.60(c)(1)
15
Id. §9.60(c)(2)
16
Id. §9.60 (c)(3)
17
Id. §9.60 (c)(4)
18
Id. §9.60 (c)(5)
19
Id. §9.60 (c)(6)
20
Id. §9.60 (c)(7)

3
 Alexander J. Nicas

illness, as a result of treatment failures, within the last thirty-six months21; and (ii) one or more

acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical

harm to self or others within the last forty-eight months.22

C. Written Treatment Plan

In addition to the petition, an examining physician must develop and provide a written

treatment plan to be submitted to the court.23 The written treatment plan must name case

management services or assertive community treatment team services who will provide care

coordination.24 The plan must also include all services which the physician recommends, such

as: medication, periodic blood tests or urinalysis to determine compliance with prescribed

medication, individual or group therapy, educational or vocational training, and alcohol or

substance abuse treatment and counseling.25 The examining physician must also allow the

subject of the petition and the treating physician the opportunity to actively participate in the

development of the plan.26

D. Hearing

Upon receipt of an AOT petition, the court must fix the date of the hearing no later than 3

days from the date of receipt.27 The physician, who has either recommended AOT or personally

examined the subject no more than ten days before filing, must testify in person at the hearing.28

During testimony, the physician must state the facts and clinical determinations supporting the

allegation that the subject meets each of the required criteria.29 The physician must also review

the treatment plan, and include a description of all medication – plus a list of the beneficial and

21
Id. §9.60(c)(4)(i). Also referred to as the “two hospitalizations” criteria.
22
Id. 9.60(c)(4)(ii). Also referred to as the “violent act” criteria.
23
Id. §9.60 §9.60(i)
24
Id.
25
Id.; Id. §9.60(a)(1)
26
Id. §9.60(i)(2)
27
Id. §9.60(h)(1) (excluding Saturdays, Sundays, and holidays)
28
Id. §9.60(h)(2)
29
Id.

4
 Alexander J. Nicas

detrimental physical and mental effects of such medication – and all rationale for the

recommended plan.30 The physician must also state that the recommended treatment plan is the

least restrictive alternative available to the subject of the petition.31

The subject of the petition has the right to legal representation by Mental Hygiene Legal

Services, or other counsel, at all stages of the hearing.32 The subject is also afforded an

opportunity to present evidence, to call witnesses, to cross-examine adverse witnesses, and to

testify on his or her behalf.33

E. Resolution

If the court finds, by clear and convincing evidence, that the subject of the petition meets

the criteria for AOT, and there is no appropriate or feasible less restrictive alternative, the court

may order the subject to receive AOT for an initial period not to exceed six months.34 The court

must specifically, by clear and convincing evidence, find that the proposed treatment is the least

restrictive treatment for the subject, and must declare such in its order.35 The court must also

detail all categories of treatment that the subject is to receive, but such treatment is limited to

what the examining physician has recommended in both the written treatment order and in

testimony provided to the court.36 If psychotropic drugs are included in the treatment plan, the

court may order the subject to self-administer the drugs or accept the administration of such

drugs by authorized personal.37 A court order for AOT may also be appealed. The assisted

outpatient, the Mental Hygiene Legal Services advocate, or anyone acting on behalf of the

30
Id. §9.60(h)(4)
31
Id.
32
See Summary, New York Office of Mental Health, http://www.omh.state.ny.us/omhweb/Kendra_web/Ksummary.htm
33
N.Y. M.H.L. §9.60(h)(5)
34
Id. §9.60(j)(2)
35
Id.
36
Id.
37
Id. §9.60(j)(4)

5
 Alexander J. Nicas

individual may petition the court to stay, vacate, or modify the order.38

In the alternative, if the court does not find, by clear and convincing evidence that the

subject meets the criteria for AOT, the court must dismiss the petition.39

F. Failure to Comply

If in the clinical judgment of a physician: (1) the assisted outpatient has failed or refused

to comply with the treatment plan, and (2) efforts were made to solicit compliance, and (3) the

assisted outpatient may be in need of involuntary admission to a hospital, such physician may

direct the removal of the assisted outpatient to an appropriate hospital for an examination to

determine if the person has a mental illness for which hospitalization is necessary.40

Furthermore, refusal to take medications, blood tests, urinalysis, alcohol, and drug tests may be

considered when determining if hospitalization is necessary.41 An assisted outpatient may also

be taken into custody by police officers, the sheriff’s department, or mobile crisis outreach teams

and transported to the hospital for evaluation.42 Once at a hospital for observation, care,

treatment, and further evaluation, the individual can only be held for up to seventy-two hours to

permit a physician to determine whether such person has a mental illness and is in need of

involuntary care.43 After seventy-two hours, any continued involuntary retention must be in

accordance with all relevant provisions relating to involuntary admission and retention.44 At any

point during the initial seventy-two hour period the person is determined to not meet the

involuntary admission and retention provisions, and does not agree to stay voluntarily, he or she

must be released.45 Under no circumstances, will an order for assisted outpatient treatment be

38
Id. §9.60(l)
39
Id. §9.60(j)
40
Id. §9.60(n)
41
Id.
42
Id.
43
Id.
44
Id. §9.60(n)
45
Id.

6
 Alexander J. Nicas

grounds for involuntary civil commitment or a finding of contempt of court.46 In other words, if

after seventy-hours, the involuntary commitment standard cannot be met, the individual must be

released.

III. Constitutionality of Kendra’s Law47 – K.L. & Coleman

In 2004, the Court of Appeals of New York ruled that Kendra’s law “provides all the

process that is constitutionally due.”48 The respondent In the Matter of K.L. “suffered from

schizoaffective disorder, bipolar type, and had a history of psychiatric hospitalizations and

noncompliance with prescribed medication and treatment, as well as aggressiveness toward

family members.”49 Respondent’s treatment plan included “psychiatric outpatient care, case

management, blood testing, individual therapy, and medication.”50 Respondent was required to

self-administer the medication as part of the plan, but if he chose not to comply, the plan

required that he would “voluntarily submit himself to the administration of Haldol Decanoate by

medical personal.”51 Respondent argued that Kendra’s Law violated his due process right

because it did not require a finding of incapacity before ordering him to comply with AOT.52

Focusing on incapacity, the respondent analogized the ordering of AOT with the forcible

medication of psychotropic drugs in Rivers v. Katz53.54 The court struck down respondent’s

argument, stating that “[s]ince Mental Hygiene Law §9.60 does not permit forced medical

46
Id.
47
In August 2008, a federal district court in the Eastern District of New York ruled on an Equal Protection challenge under the Fourteenth
Amendment. Mental Disability Law Clinic v. Hogan, No. CV-06-6320 (CPS)(JO), 2008 WL 4104460 (E.D.N.Y 2008). Plaintiff asserted that
Kendra’s Law created two classes, those who met the criteria of §9.60(c)(4) (two hospitalization + violent behavior criteria), and those who
didn’t. Id. *12. Plaintiff was actually advocating for greater use of AOT by eliminating the requirements in §9.60(c)(4). Id. The court applied the
rational basis test, and held that “[a]lthough the law undoubtedly overlooks some who may benefit from intervention through AOT … there is no
indication of irrationality in the legislature's actions, which appear to be an attempt to balance the state's interest in addressing services to those
most at risk for relapse or violence with the civil liberties of other individuals with mental illness.” Id. *13.
48
In the Matter of K.L., 806 N.E.2d 480, 486 (2004)
49
Id. at 482
50
Id.
51
K.L., 806 N.E.2d at 482
52
Id.
53
495 N.E.2d 337 (1986)
54
K.L., 806 N.E.2d at 484

7
 Alexander J. Nicas

treatment, a showing of incapacity is not required.”55 After distinguishing Rivers, the court

relied on the state’s police powers to justify the “minimal restriction on the right to refuse

treatment inherent in an order,” noting that the patient is in need of AOT “to prevent a relapse or

deterioration which would be likely to result in serious harm to self or others.”56 Further, the

court relied on the state’s parens patriae power to provide care to citizens unable to care for

themselves because of mental illness.57 As an AOT order requires all criteria58 to be proven by

clear and convincing evidence, and that AOT be the least restrictive alternative59, the court held

that the “state’s procedure for obtaining an AOT order provides all the process that is

constitutionally due.”60 In the Matter of K.L. settled the due process question under New York

law, but it took more than six years for any federal court to take up the issue.

On March 17, 2010, a federal district court in the Southern District of New York decided

Coleman v. State Supreme Court.61 Coleman was the first case to address whether M.H.L. §9.60

– or any state’s AOT program – comports with the Fourteenth Amendment due process rights of

those who are court-ordered to participate.62 Jason Coleman was diagnosed with paranoid

schizophrenia in 2004.63 After diagnosis, he periodically spent time in the hospital, but on

August 16th, 2006, the director of the AOT program in Manhattan successfully petitioned the

court, and Coleman was ordered to participate in AOT for six months.64 On February 13, 2007,

based on the AOT director’s renewed petition, the court ordered Coleman to participate for an

55
Id.
56
Id. at 485
57
Id. at 486
58
See, supra notes 14-22
59
The court stated: “[m]oreover, any restriction on an assisted outpatient’s liberty interest felt as a result of the legal obligation to comply with an
AOT order is far less onerous than the complete deprivation of freedom that might have been necessary if the patient were to be or remain
involuntarily committed in lieu of being released on condition of compliance with treatment.” Id. at 485
60
Id.
61
697 F.Supp.2d 493 (S.D.N.Y 2010)
62
Coleman, 697 F.Supp.2d at 505
63
Id. at 501
64
Id.

8
 Alexander J. Nicas

additional six months.65 Coleman stayed in AOT until February 16, 2009.66 In total, Jason

Coleman was in AOT from August 16, 2006 until February 16, 2009. After release from the

program, Coleman brought suit against multiple defendants, contending that it was his right “as a

U.S. citizen [to not] take meds if he doesn’t want to … [but] … was forced to take medication

and attend a program … though he had not broken any law [or] done anything to [him]self or

anyone else.”67 The court liberally construed Coleman’s complaint to allege that certain

defendants68 violated his substantive and procedural due process rights under the United States

Constitution.69

The court in Coleman first addressed the substantive due process question embodied in

the Fourteenth Amendment. They stated that the “substantive issue requires the [c]ourt to define

the protected interest and identify the interests that might outweigh it.”70 The court then traced

through the major criminal forced medication cases that have been determined by the Supreme

Court. First, the court discussed Washington v. Harper71, and the “dangerousness” standard the

Supreme Court applied to outweigh the prisoner’s liberty interest in refusing forced

medication.72 Next, the court discussed Riggins v. Nevada73, which advanced the Harper

analysis in the context of an insanity defense.74 Finally, the court discussed Sell v. United

States75, which held that forced medication is only appropriate in rare circumstances if the

65
Id.
66
Id.
67
Id.
68
The due process claims were applied to the City of New York, Bellevue Hospital Center, and the Mental Hygiene Part of the New York
Supreme Court. Id. at 502
69
Id. The complaint also alleged a violation of due process under the New York Constitution, but the court subsequently dismissed this claim as
it was clearly precluded by the Court of Appeals decision in In re K.L. Id. 505.
70
Coleman, 697 F.Supp.2d at 506
71
494 U.S. 210. 221-22 (1990) (holding that an inmate has a significant liberty interest in avoiding the unwanted administration of antipsychotic
drugs under the Due Process Clause of the Fourteenth Amendment).
72
Id. at 227 (finding that the forcible administration of antipsychotic drugs is permissible in a prison environment if the inmate is dangerous to
himself or others and the treatment is in the inmate’s medical interest).
73
504 U.S. 127 (1992)
74
Id. at 135 (holding that requiring involuntary medication might have been justified if it was medically appropriate and, considering less
intrusive alternatives, essential for the sake of Riggins’ own safety or the safety of others).
75
539 U.S. 166, 178-89 (2003) (holding that only an essential or overriding state interest could overcome an individual’s constitutionally-
protected interest in avoiding forced medication).

9
 Alexander J. Nicas

intention is to make someone competent to stand trial, but that the purposes set out in Harper –

related to dangerousness or where refusal to take drugs puts one’s health gravely at risk – should

be looked at first to determine if forced medication is warranted.76 After reviewing Harper,

Riggins and Sell, the court recognized that Coleman “unquestionably has a liberty interest in

avoiding the forced medication of antipsychotics … [and] …only an ‘essential’ interest on the

part of the state can override that liberty interest.”77 The court determined that although M.H.L.

§9.60 does not expressly require a finding of dangerousness, the statute is “fully consistent with

Harper and it’s progeny” because it essentially requires a finding of dangerousness.78 The court

went on to state that “participation in AOT enables individuals who are at high risk of

involuntary hospitalization to remain in the community as outpatients, an alternative which if far

preferable.”79 The court concluded that although Coleman has a liberty interest in avoiding the

involuntary administration of medication – inherent in court-ordered AOT – M.H.L. §9.60

furthers governmental interests, requires medication only where medically appropriate, and is

less intrusive than alternative methods of ensuring the safety of the community and mentally ill

patients. 80

The court then addressed Coleman’s claim that he was denied procedural due process

because his case was heard without a jury.81 Acknowledging the constitutionally-protected

liberty interest found during its substantive due process analysis, the court faced the question of

whether “[M.H.L.] [§] 9.60 afforded Coleman adequate procedural protections … [and] … also

76
Id. at 181-82
77
Coleman, 697 F.Supp.2d at 508 (quoting Sell, 539 U.S. at 178-79)
78
Id. at 508-09 (stating that the statute requires, before permitting AOT: #1, a finding that subjects are unlikely to voluntarily participate in
outpatient treatment, that would enable them to live safely in the community; and, #2 that AOT is necessary to prevent a relapse or deterioration,
which would likely result in serious harm to themselves or others).
79
Id. at 509.
80
Id.
81
Id. (outlining how to establish such a claim, the court stated that a plaintiff must show that he was deprived of a liberty or property interest
before the court was required to consider what process was due and whether it was provided).

10
 Alexander J. Nicas

whether those procedural protections, in fact, were made available to him.”82 Turning to the

statute, the court began by highlighting how much medical input was required before an AOT

order is issued.83 The court also noted that the physician supporting the AOT petition must

establish that AOT is the least restrictive alternative.84 The court moved beyond the amount of

medical input required to state that the statute also requires: a judicial hearing, a second review

before a second justice of the New York Supreme Court who “must cause a jury to be

summoned85”, and representation at the hearing by Mental Hygiene Legal Services.86 In light of

the breadth of professional input and levels of judicial review available to a petitioner, the court

held that Coleman’s procedural due process challenge under the Fourteenth Amendment must

fail.87

Based on the holdings in K.L. & Coleman, it is clear that the New York legislature was

quite proficient in drafting Kendra’s Law. If we were to look at voluntary commitment statutes

from other states, we may not find the same comprehensiveness. Imperfectly drafted statutes

will undoubtedly lead to legal challenges in the future, but this result may not be undesirable. As

cases are adjudicated, the law will hopefully be refined, and the statutes will become more

narrowly tailored to match the balance between state interest and personal liberty deemed

necessary by courts. As statutes are narrowly tailored, the state – hypothetically – will be able to

provide the least restrictive care to the greatest base of recipients; all within the confines of what

is constitutional. This scenario may be a slight stretch because of the nature of state legislatures,

but one can hope that the result is within our grasp.

IV. “Least Restrictive Alternative” – A standard with roots, but what does it mean?

82
Id. at 509-10.
83
Id. at 510-11 (listing the protections to include: support for an AOT petition by an affirmation or affidavit of a physician who has examined the
subject, personal testimony by this physician at the hearing, and extensive medical detail supporting the application).
84
Id. at 511
85
N.Y. M.H.L. §9.60(m); Id. §9.35.
86
Id.
87
Id.

11
 Alexander J. Nicas

The phrase “least restrictive alternative” pops up all over the place when researching civil

commitment, forced medication cases, and involuntary outpatient treatment statutes (AOT).

“Least restrictive alternative” is also used multiple times in M.H.L. §9.60. First, the examining

physician must state that the proposed treatment plan is the least restrictive alternative.88

Second, the court must specifically state in its order, after finding by clear and convincing

evidence, that the treatment plan is the least restrictive alternative available to the subject.89

There is substantial debate on what this actually means, but the seeds were planted many years

ago.

It was Chief Judge Bazelon who, in Lake v. Cameron, ruled that the state “bear[s] the

burden of exploration of possible alternatives” to commitment, and that “an earnest effort should

be made to review and exhaust available resources of the community in order to provide care

reasonable suited to [the patient’s] needs.”90 The landmark patient-rights case of Lessard v.

Schmidt, made reference to Lake before stating that “alternatives include voluntary or court-

ordered outpatient treatment, day treatment in a hospital … and referral to a community mental

health clinic.”91 Both Lake & Lessard involved individuals already subject to involuntary

commitment. In that context, it is clear then that a “least restrictive alternative” would be any

form of treatment other than confinement in an institutional setting.

It is important at this juncture to frame the “least restrictive alternative” component as it

relates to AOT, because although AOT is voluntary, it is court-ordered and there are

ramifications for failure to comply.92 On one-hand, AOT can be viewed as an autonomy-

88
Id. §9.60(h)(4)
89
Id. §9.60(j)(2)
90
124 U.S.App.D.C. 265, 267, 364 F.2d 657, 660 (1966)
91
349 F.Supp 1078, 1096 (1972)
92
N.Y. M.H.L §9.60(n) (stating that an individual can be brought to a hospital, for a period of observation not to exceed seventy-two hours, if in
the clinical judgment of a physician, the assisted outpatient has failed to comply).

12
 Alexander J. Nicas

enhancing, community-based alternative to inpatient commitment.93 It can also be viewed from

the point of view of the person already living in the community who wishes to retain the right to

make fundamental choices concerning medical treatment.94 In light of the legislative intent

outlined in the introduction, I believe that the legislature viewed AOT as an autonomy-enhancing

treatment plan.95 Regardless of my stance, there is no shortage of opinion on both sides of the

issue.

A major force in the field, the Bazelon Center for Mental Health Law (“Center”) is a

nonprofit organization devoted to improving the lives of people with mental illnesses through

changes in policy and law.96 As noted above, it was Judge David L. Bazelon – the namesake of

the organization – who wrote the opinion in Lake v. Cameron while sitting on the D.C. Circuit of

the United States Court of Appeals. Over the years, the Center has been at the forefront, ardently

defining and advancing the rights of individuals with mental disabilities.97 In regards to

outpatient commitment, the Center opposes all involuntary outpatient commitment because it

believes that it infringes on an individual’s constitutional rights.98 The Center does support the

right of each individual “to fully participate in, and approve, a treatment plan and to decide

which services to accept.”99 Although AOT does not explicitly allow an individual to decide

which services to accept, the subject of the petition is allowed to participate in the formulation of

the treatment plan.100 Undoubtedly, I am simplifying the Center’s view of involuntary outpatient

93
Henry A Dlugacz, Involuntary Outpatient Commitment: Some Thoughts on Promoting a Meaningful Dialogue Between Mental Health
Advocates and Lawmakers, 53 N.Y.L. Sch. L. Rev. 79, 88 (2008/2009)
94
Id.
95
See Ilissa L. Watnik, A Constitutional Analysis of Kendra’s Law: New York’s Solution for Treatment of the Chronically Mentally Ill, 149 U.
Penn L. Rev. 1181, 1201 (2001) (stating that the least restrictive alternative requires that treatment be provided in the least restrictive feasible
manner, in order to serve the dual objectives of preserving the individual’s autonomy to the greatest extent possible while simultaneously
ensuring public safety, and with the passage of Kendra’s Law, New York has provided a less restrictive option than institutionalization for the
mentally ill).
96
See Report, Bazelon Center for Mental Health Law, http://www.bazelon.org/Who-We-Are.aspx
97
Id.
98
See, Position Statement on Involuntary Commitment, Bazelon Center for Mental Health Law, http://www.bazelon.org/Where-We-Stand/Self-
Determination/Forced-Treatment/Outpatient-and-Civil-Commitment/Resources.aspx)
99
Id.
100
N.Y. M.H.L. §9.60(i)(2)

13
 Alexander J. Nicas

commitment, but for discussion purposes it is worthwhile to see where they stand.

On the other end of the spectrum is The Treatment Advocacy Center (“TAC”). TAC is a

nonprofit organization dedicated to eliminating barriers to timely and effective treatment for

people with severe psychiatric illness who are not receiving appropriate medical care.101 TAC

believes that “AOT gives family members and the community a tool to help those most at risk

who refuse needed treatment.”102 TAC seeks to influence the debate through educating the

major players – judges, attorneys, legislative committees, grassroots advocates, and researchers –

by providing a forum where material on the benefits of AOT is readily available.103 In June

2010, E. Fuller Torrey – the founder of TAC – wrote an editorial in the New York Times titled

“Make Kendra’s Law Permanent.”104 At the time, Kendra’s Law was set to sunset on June 30,

2010. In his editorial, Mr. Torrey stated that there are people “whose illness interferes with their

ability to understand that they are sick and need medication … [and] … [these people] do not

have the choice to live freely and comfortable, but only to be homeless, in jail or in a psychiatric

hospital.”105 He went on to say, “Kendra’s Law saves lives … [and] [b]y keeping patients on

medication, it also saves money that might otherwise be spent on re-hospitalization, prosecution

and incarceration.”106 In making his plea, Mr. Torrey seemed to be echoing the sentiment stated

by the legislature when they enacted Kendra’s Law.107

V. Analysis – Can we tell how effective AOT has been?

AOT developed as a result of the deinstitutionalization of mental health facilities in the

101
See Case Statement Brochure, Treatment Advocacy Center,
http://www.treatmentadvocacycenter.org/index.php?option=com_content&task=view&id=14&Itemid=43)
102
Id.
103
Id.
104
E. Fuller Torrey, Make Kendra’s Law Permanent, N.Y. TIMES, June 1, 2010, at A27
105
Id.
106
Id.
107
§408, §2, 1999 N.Y. Laws S-5762-A (stating that there are mentally ill persons who can function well and safely in the community with
supervision and treatment, but who without such assistance, will relapse and require long periods of hospitalization)

14
 Alexander J. Nicas

1950’s.108 The goal was to provide community-based services and treatment for the mentally ill

in a less restrictive setting.109 AOT is therefore the least restrictive alternative for a mentally ill

individual who once might have faced confinement by the state.110 Although AOT is the least

restrictive alternative, and has been shown, preliminarily, to pass constitutional muster, does it

represent good policy? Besides the due process issues discussed in the cases above, critics

further argue that AOT stigmatizes the mentally ill111, and that the coercive nature of AOT is

inherently anti-therapeutic.112 These concerns are certainly valid, but more philosophical in

nature. The following analysis will utilize empirical data to see how effective AOT is in 2

contexts: (1) hospitalization and possession of medication, and (2) incarceration post-AOT.

A. AOT Statistics (November 1999 – November 2010)113

6,431 AOT petitions have been filed in New York City since Kendra’s Law was

enacted.114 A staggering 97% (6,270) of those petitions have been granted.115 Across New York

State, the percentage of petitions granted/filed is consistent, ranging from 94% (Western NY) to

98% (Hudson River).116 Currently, there are 1,878 active AOT cases in the State of New

York.117 1,204 individuals, representing about 64% of all active AOT cases, reside in New York

City.118 Historically, the amount of time spent in AOT is as follows:

0-6 Months 21%

108
Watnik, supra note 97, at 1184.
109
Id. 1186.
110
See Kathryn A. Worthington, Kendra’s Law and the Rights of the Mentally Ill: An Empirical Peek Behind the Courts’ Legal Analysis and a
Suggested Template for the New York State Legislature’s Reconsideration for Renewal in 2010, 19 Cornell J.L. & Pub. Policy 213, 216-18
(2009).
111
See Bruce Winick, Ken Kress, John Kip Cornwell & Raymond Deeney, Exposing the Myths Surrounding Preventive Outpatient Commitment
for Individuals with Chronic Mental Illness, 9 Psychol., Pub. Pol’y & L. 209, 225-26 (2003) (stating that historically society has associated
violence with mental illness).
112
Id. (stating that critics will claim that the coercive nature contravenes the therapeutic mission of helping people with mental illness); See also
Margo Flug, No Commitment: Kendra’s Law Makes No Promise of Adequate Mental Health Treatment, 10 Geo. J. on Poverty L. & Pol’y 105,
108-110 (2003)
113
See Data, New York Office of Mental Health, http://bi.omh.state.ny.us/aot/about?p=data-collection
114
See Petitions Filed, New York Office of Mental Health, http://bi.omh.state.ny.us/aot/statistics?p=petitions-filed
115
Id.
116
Id.
117
See Statistics, New York Office of Mental Health, http://bi.omh.state.ny.us/aot/statistics?p=under-court-order
118
Id.

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 Alexander J. Nicas

6-12 Months 24%

12-18 Months 17%

18-30 Months 20%

Over 30 Months 17%

119

Because an initial AOT order cannot exceed six months120, the above chart indicates that many

orders are renewed. In fact, 61% of all AOT orders have been renewed.121 If an order was not

renewed, the living situation at the time of expiration is as follows: 16% living alone; 38% living

with others; 25% in supervised living situation; 8% in inpatient setting; 3% incarcerated; and,

10% in other living situations.122 The average age of AOT subjects is 37.8 statewide.123 66% of

all AOT subjects are male, while 34% are female.124

B. Hospitalization and Possession of Medication Post-AOT

According to gross statistics provided by the New York State Office of Mental Health

(“OMH”), individuals were, on average, 53% less likely to be hospitalized during their court-

ordered AOT program that at any point pre-petition.125 In New York City, 85% of all AOT

subjects were hospitalized at one point prior to AOT.126 During AOT, the same subjects were

hospitalized only 38% of the time.127 At first glance, a 55% reduction in hospitalization seems

like a positive result. A newly published article in Psychiatric Services magazine, Assessing

Outcomes for Consumers in New York’s Assisted Outpatient Treatment Program, attempts to

119
See Time in AOT, New York Office of Mental Health, http://bi.omh.state.ny.us/aot/statistics?p=time-in-aot
120
N.Y. M.H.L §9.60(j)(2)
121
See Renewals, New York Office of Mental Health, http://bi.omh.state.ny.us/aot/statistics?p=court-order-renewals
122
See Living Situation, New York Office of Mental Health, http://bi.omh.state.ny.us/aot/statistics?p=living-situation
123
See Demographics Age, New York Office of Mental Health, http://bi.omh.state.ny.us/aot/characteristics?p=demographics-age
124
See Demographics Gender, New York Office of Mental Health, http://bi.omh.state.ny.us/aot/characteristics?p=demographics-gender
125
See Outcomes, New York Office of Mental Health, http://bi.omh.state.ny.us/aot/outcomes?p=rse-psych
126
Id. This figure seems somewhat contradictory. Section 9.60(c)(4)(i) has a two hospitalization criteria, which would lead one to believe that
100% of all AOT subjects were hospitalized prior to petition.
127
Id.

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 Alexander J. Nicas

refine the analysis.128 The study utilized data on 3,576 individuals who received court-ordered

AOT and who were enrolled in Medicaid at any time between January 1, 1999 and March 14,

2007.129 The study confirmed the general finding that AOT “consumers’ likelihood of

psychiatric hospitalization was significantly lower compared with their pre-AOT experience.”130

In the first six months of an order, hospital admissions were “reduced by roughly 25% from the

pre-AOT period,” and if renewed, “the likelihood of an inpatient admission was reduced even

further” (approximately 40%).131 The study also used Medicaid claims data to look at the

likelihood of possessing medication.132 Subjects in AOT were found to be 50% more likely to

possess medication during the initial six-month period when compared to pre-AOT, and were

90% more likely to possess medication during a subsequent renewal of the order.133 Authors

concluded, “compared with the pre-AOT period, consumers were significantly less likely to be

hospitalized for psychiatric treatment, spent fewer days when hospitalized, [and] were more

likely to possess an adequate supply of psychotropic medication appropriate to their diagnosis”

during AOT.134 A companion study, Continuing Medication and Hospitalization Outcomes After

Assisted Outpatient Treatment in New York, examined whether AOT increases the chance that

individuals will continue to receive prescribed medication and avoid hospitalization after AOT

ends.135 In other words, the authors attempted to see what happens when the “legal leverage” is

128
Marvin S. Swartz et al., Assessing Outcomes for Consumers in New York’s Assisted Outpatient Treatment Program, 61 Psychiatric Services
976 (Oct. 2010).
129
Id. at 977 (stating that Medicaid mental health services for individuals with severe mental illness are largely provided in New York and that
medication claims reflect treatment engagement).
130
Id. at 979
131
Id.
132
Id.
133
Id. (stating that the baseline for measurement was the likelihood of possessing medication for 80% or more of the days in any month).
134
Id. (qualifying all conclusions by stating that the analysis was limited by certain factors, including: the lack of a contemporaneous comparison
group, the inability to control for all the reasons that some individuals received longer or short periods of AOT or the myriad of reasons for
ending the court order at a given time, and that reliance on Medicaid data may fail to reflect the experience of consumers not enrolled in the
Medicaid program).
135
Richard A. Van Dorn et al., Continuing Medication and Hospitalization Outcomes after Assisted Outpatient Treatment in New York, 61
Psychiatric Services 982 (Oct. 2010).

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 Alexander J. Nicas

lifted.136 Using the same data set as the previous study, the authors concluded: “when court-

ordered treatment end, sustained improvements in medication possession and reductions on

hospitalizations vary according to the length of time the recipient spent under the court order.”137

Splitting AOT subjects into two groups – (1) those who spent 6 months or less in AOT, and (2)

those who spent 7 months of more in AOT – the study confirmed that those who spent 7 months

or more in AOT had higher medication possession rates and decreased hospitalizations even

when this group didn’t receive case management services after AOT.138 This finding confirms

that the benefits of AOT were likely to persist after court-ordered AOT ended if the initial

treatment period was longer than six months.139

B. Incarceration Rates during AOT

Examining incarceration rates during AOT is important because an arrest or incarceration

may be disruptive to the community care or treatment that a mentally ill individual is already

receiving. Common sense tells us that continuity of care is critical to long-run success.

Returning to gross data provided by OMH, individuals in AOT were 73% less likely to be

incarcerated during AOT than at anytime in their lifetime prior to AOT.140 OMH calculated this

percentage because, on average, 24% of all AOT recipients had been incarcerated at some point

prior to AOT, but only 9% had been incarcerated during AOT.141 Given the myriad of possible

reasons why an AOT recipient was not incarcerated during AOT142, it is impossible to tell if

these figures truly reflect the reality on the ground. A new study in Psychiatric Services

magazine, Reductions in Arrest Under Assisted Outpatient Treatment in New York, sought to

136
Id.
137
Id. at 985.
138
Id.
139
Id. at 986 (qualifying all conclusions by stating that the analysis was limited by certain factors, including: the various reasons for receipt of
longer or shorter periods of AOT, the fact that decreased hospitalization rates may not correlate with improved quality of life, and the reality that
increased medication possession does not mean that medication was actually taken).
140
See Outcomes, New York Office of Mental Health, http://bi.omh.state.ny.us/aot/outcomes?p=rse-incar
141
Id.
142
For example: general deterrence, recovery from substance abuse that may have affected lawlessness, and homelessness.

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 Alexander J. Nicas

refine the analysis by examining whether AOT recipients have lower odds of arrest than persons

with serious mental illness who have not yet initiated AOT or signed a voluntary service

agreement143.144 Authors sampled individuals who were 18 years or older and had a diagnosis of

schizophrenia spectrum disorder or an affective disorder.145 181 participants were then randomly

selected from program rosters, interviewed (to discuss treatment programs already assigned),

Medicaid records were matched and arrest records from November 1, 1999 to February 28, 2008

were reviewed.146 The study found that the “odds of arrest in any given month for participants

who were currently receiving AOT were nearly two-thirds lower than odds for participants in the

pre-AOT or pre-voluntary agreement group”.147 The study also found “no statistically

significant difference in odds of arrest … between those with a current voluntary agreement and

those in [the pre-voluntary agreement] group.”148 Surprisingly, authors stated that one

explanation for the difference in results “may be that AOT recipients were more strongly

motivated to engage in treatment to avoid the negative consequences of violating a court

order.”149 Contrasting this conclusion, authors also said that police could alter their approach

when dealing with AOT recipients by “referring known AOT participants back to the mental

health system instead of arresting them … [while] … their non-AOT counterparts … might be

arrested and booked for the same offenses.”150 This contrasting conclusion highlights a

limitation in the incarceration study, and the need for further research on this particular topic.

Although authors acknowledged the shortfall, they still stated: “evidence suggests that AOT may

143
See Data, New York Office of Mental Health, http://www.omh.state.ny.us/omhweb/resources/publications/aot_program_evaluation/ (stating
that under a voluntary service agreement, the recipient signs a statement that he or she will adhere to a prescribed community treatment plan).
144
Allison R. Gilbert et al, Reductions in Arrest Under Assisted Outpatient Treatment in New York, 61 Psychiatric Services 996 (Oct. 2010).
145
Id. at 997.
146
Id.
147
Id. (stating that possible reasons for the results were: increased engagement in intensive case management services, including ongoing
supervision and monitoring of behavior, and increased adherence to appropriate psychotropic medications).
148
Id. (stating that the possible reasons for the absence of significant difference in results, even though a voluntary service agreement includes
close oversight and intensive case management, may suggest that the court order conferred additional benefits not found with the voluntary
group).
149
Id. at 998
150
Id.

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 Alexander J. Nicas

reduce the risk of being arrested … [and therefore] AOT may thus play an important role in

improving community-based treatment outcomes for persons with serious mental illness and in

reducing coercion associated with criminal justice involvement in this population.”151

C. Legislative Funding

AOT’s effectiveness hinges on adequate funding to implement its programs.152 Since

launching AOT in 1999, the New York State legislature has aggressively funded the program

with $125 million.153 Critics feared that the generous funding would reduce treatment

availability and funding in other parts of the system, but that doesn’t seem to be the case.154 In

this way, New York seems to be different than other states who have also passed similar AOT

statues.155 For example, New Jersey recently passed a law expanding outpatient civil

commitment, but Governor Christie put it on hold this summer because no new funding was

allocated to implement it.156 Regardless of where you stand on the AOT issue, it is clear that an

underfunded mental health system won’t help anyone – voluntary or involuntary. Continued

funding is critical to the long-run viability of AOT. In the current state of rising budget deficits,

the legislature will have to make AOT a priority if it desires to see continued success.

D. Analytical Summation

The studies noted above point to progress. Psychiatric hospitalization rates were shown

to decrease during AOT, consumers were more likely to possess medications during and after

AOT, and the odds of arrest were decreased during AOT when compared to pre-AOT.157

Empirical studies are only a policy tool though, aiding the legislature in determining whether

151
Id. at 999
152
Steven Strang, Assisted Outpatient Treatment in Ohio: Is Jason’s Law Life-Saving Legislation or a Rash Response?, 19 Health Matrix: Journal
of Law-Medicine 247 (2009)
153
Rich Daly, Major Funding Commitment Help’s Kendra’s Law Succeed, 45 Psychiatric News 11 (Oct. 15, 2010)
154
Id. (stating that findings suggest that in the long-run AOT is a program that came bearing new services and has left in its wake a system of care
with greater capacity to serve all persons with serious mental illness, voluntary ones no less than involuntary ones).
155
Id.
156
Id.
157
See supra notes 136, 146.

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 Alexander J. Nicas

AOT is a program that should be continued. In this light, the results are not a justification, but

only a gauge of the program’s success. Similar studies in the past have shown that AOT, or

similar programs were not as successful.158 Time matters when gauging effectiveness, and as

years pass, further research and data collection is necessary so that policy makers can draw

reasonable, educated conclusions.159

VI. Additional Points of Concern with AOT

Although the studies point to AOT’s success, the program still raises concern. In

addition to the stigmatization of the mentally ill, or the inherent anti-therapeutic nature of AOT’s

coercion160, what are the potential procedural defects? Each individual served with an AOT

petition has a right to counsel161, but does the expediency of a hearing (not more than 3 days

from the date of the petition162) allow counsel a reasonable amount of time to speak with the

subject and devise possible defenses? Does this timeline really allow petitioner a meaningful

opportunity to participate in the creation of a possible treatment plan?163 Also, who are filing

AOT petitions? Would the element of coercion be viewed differently if a mother, father, brother

or sister had filed, instead of a physician? All of these questions remain unanswered.

Furthermore, is there a racial disparity in application? Statistics show that blacks are nearly five

times as likely as whites to be the subject of court orders.164 This result is particularly alarming

when only 16% of the population in New York is black, compared with 62% of the population

being white.165 This result could be explained because the majority of AOT orders are filed in

New York City, where there is a large black population, but critics counter that the “policy is

158
Worthington, supra note 112 at 236 (detailing a 1998 Bellevue Hospital Study that showed that court orders did not lead to increased patient
compliance with treatment, lower rates of hospitalizations, lower rates of arrest for violent acts, or an increase in functioning of the mentally ill).
159
Id. at 237-38 (stating that a RAND study conducted in 2001 highlighted how further empirical research was necessary to assess the policy
tradeoffs between involuntary outpatient commitment and alternatives such as assertive community treatment).
160
Id. at 238 (stating that coercion could be counterproductive because it erodes patient trust, the patient’s self-determination or self esteem).
161
N.Y. MHL §9.60(g)
162
Id. §9.60(h)
163
Dlugacz, supra note 95 at 92.
164
Michael Cooper, Racial Disproportion Seen in Applying Kendra’s Law, N.Y. TIMES, April 7, 2005, at B5.
165
Id.

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 Alexander J. Nicas

disproportionately taking away the freedom of groups who have historically been oppressed.”166

VI. Conclusion

Gary Collins, M.D., director of the NYU/Bellevue Hospital Center AOT Program

recently said that he has seen beneficial client outcomes, but cautioned that research “has yet to

demonstrate a causal relationship between AOT and clinical outcomes, and more comprehensive

research on New York[‘s] AOT program is needed.”167 It is interesting that Dr. Collins

differentiates between client and clinical outcomes. In doing so, he notes visible patient

progress, but reserves judgment as to whether progress is a result of AOT. I think Dr. Collins

accurately distinguishes the medical analysis (beneficial client outcomes) from the policy

analysis (lack of a causal relationship), I agree with his assessment of the situation.

As a recent report indicates, about 20% of U.S. adults suffered from some sort of mental

illness in 2009, and about 5% suffered from serious mental illness.168 I am sympathetic for a

mentally ill individual who flies under the radar, either in our penal system or in sub-standard

living conditions. For this individual, access to treatment will show its benefit. For others, those

who suffer from mental illness but maintain independence, AOT will certainly drag on their

liberty. But, can it also increase their autonomy? If it can, is the process worth the reduction in

liberty? Instinctively, I believe positive patient outcomes envelop minor decreases in personal

liberty. But, AOT should only be an option for those who really need it. If another option is

available, one that would be less restrictive than AOT, the process needs to be in place to ensure

that it is delivered.

When the legislature recently extended Kendra’s Law until 2015, the statements in

166
Id. (quoting John A. Gresham, senior litigation counsel for New York Lawyers for the Public Interest).
167
Daly, supra not 153
168
See Press Release, Substance Abuse and Mental Health Services Administration,
http://www.samhsa.gov/newsroom/advisories/1011180411.aspx (defining serious mental illness as a diagnosable mental disorder that has
substantially interfered with, or limited one or more major life activities).

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 Alexander J. Nicas

support of the bill’s passage (by 55-0 vote) highlighted much of the research included in this

paper.169 However, the empirical studies provided to the legislature and cited in this paper, were

partially funded by the New York State Office of Mental Health.170 This inherent conflict of

interest doesn’t completely discredit the work though. All of the researchers are well accredited,

and affiliated with venerable institutions; their work, although partially funded by the OMH,

stands by itself. If anything, this should amplify the calls for independent research on AOT and

all similar programs across the United States. As strong, well-connected institutions such as the

Bazelon Center for Mental Health Law advocate for the mentally ill, I believe further studies will

be done.

The case isn’t closed on AOT. Legal challenges will continue to be brought in New York

and other states, and we have yet to see another federal court weigh in on the due process issue.

Until that time, I advocate for further empirical research. Further research is the only way that

the causal relationship noted by Dr. Collins can be discovered or disproven. At my core, I

believe that Kendra’s Law is autonomy enhancing, and an essential program in our mental health

system. I believe it is the least restrictive alternative for many mentally ill individuals, and

should be made permanent if positive results continue to be revealed.

169
See Press Release, New York State Senate, http://www.nysenate.gov/press-release/kendra-s-law-passes-senate
170
Swartz, surpra note 128 at 981; Van Dorn, supra note 135 at 986; Gilbert, supra note 144 at 999

23