top of page
Search
  • Matt Donelian

Kendra’s Law: The Troubling Reality of Involuntary Assisted Outpatient Psychiatric Treatment in New York

Mental health disorders are among the most formidable public health issues facing our world today.[1]  In New York, roughly one in ten individuals battles mental health issues severe enough to impede their functionality in critical domains of life such as work, education, and family.[2]  The journey to accessing essential mental health care is fraught with obstacles, including symptom-induced recognition barriers, societal stigmatization, and economic constraints—leading to a care paradigm that is both costly and exclusionary.[3] Alarmingly, even the availability of care does not guarantee engagement as many individuals in need refuse to seek treatment.[4] 

Treatment Over Objection (“TOO”) is a critical yet contentious aspect of mental health care which involves administering psychiatric treatment to individuals who are unable or unwilling to consent to such treatment via court order.[5]  In instances where severely mentally ill patients pose a substantial threat of physical harm or death to themselves are others, involuntary admission to a psychiatric hospital unit may be ordered by medical certificate.[6] Conditions such as severe depression, psychosis, or mania can impair judgment to the extent that individuals may not recognize their need for treatment.[7] New York’s legal framework governing TOO endeavors to strike a delicate balance between safeguarding individual liberties and public safety by mandating stringent criteria and procedural rigor to ensure its judicious application.[8] 

Admission to an inpatient psychiatric setting is not the only form of involuntary treatment available to severely mentally ill individuals. Under New York’s “Kendra’s Law,” Involuntary Assisted Outpatient Treatment (“AOT”) can provide a pathway to recovery for those who cannot voluntarily seek or adhere to treatment due to their illness.[9]  It is well documented that there are mentally ill persons who are capable of living in the community with the help of family, friends and mental health professionals, but who, without proper treatment and care, may relapse and become a danger to themselves or others and ultimately require hospitalization.[10]  When appropriate, AOT serves as a beneficial pathway to recovery because it provides patients with the care and structure required to treat their illness while allowing them to live autonomously in an outpatient setting.[11] 

AOT must be handled very carefully as an improper court order mandating a patient to comply with treatment can violate due process rights.[12]  The extremity of this judicial measure is met with an extremely high statutory threshold in New York.[13] However, the current statutory framework for AOT in New York still fails to reach a broader demographic of patients that stand to benefit from such interventions, relegating them to a precarious position where voluntary compliance is their sole avenue for treatment—an often infeasible prospect due to the nature of severe mental illnesses.[14]

Severely mentally ill individuals who do not receive AOT intervention exhibit higher hospitalization rates and lack the continuity of care essential for effective treatment and care.[15] Under Kendra’s Law, a patient must have either been hospitalized or incarcerated twice in the past 36 months as a product of their mental illness or engaged in serious threats or acts of violence toward themselves or others to qualify for AOT.[16] Kendra’s Law fails to protect both the patient and others until it is too late because a patient's condition must go untreated and deteriorate to the point where they are engaging in serious violence, becoming hospitalized, or incarcerated before involuntary medical intervention is legally viable. Once the patient deteriorates to the point where they satisfy the current AOT criteria, they are at serious risk of falling into a vicious cycle of being involuntarily admitted to an inpatient setting.[17]  In light of these considerations, there is an urgent need to recalibrate Kendra’s Law and transform it from a retroactive to a proactive legal framework that enables timely legal and medical intervention before the onset of irreparable harm. Such a reform is not merely a legislative imperative, but a moral one, essential for safeguarding both the well-being of patients and public safety in a humane and effective manner.



[1] See The Burden of Mental Illness, N.Y. Sᴛᴀᴛᴇ Dᴇᴘ’ᴛ ᴏғ Hᴇᴀʟᴛʜ (Apr. 2022), https://www.health.ny.gov/prevention/prevention_agenda/mental_health_and_substance_abuse/mental_health.htm.

[2] Id.

[3] See id.

[4] See Memorandum from N.Y. State Office of Mental Health to N.Y. State Public Mental Health Providers (Feb. 18, 2022), https://omh.ny.gov/omhweb/guidance/interpretative-guidance-involuntary-emergency-admissions.pdf.

[5] Dr. Andrea Paulitsch-Buckingham, Treatment Over Objection: Clinical Outcomes, Ethical Implications and Controversy at BPC Grand Rounds (May 24, 2019), https://ubmm.med.buffalo.edu/uploads/MMU3/5-24-2019%20TOO%20Grand%20Rounds%20Presentation.pdf.

[6] Memorandum, supra note 3 at 4-5.

[7] See Katherine B. Cook, Revising Assisted Outpatient Treatment Statutes in Indiana: Providing Mental Health Treatment for Those in Need, 4 Iɴᴅ. Hᴇᴀʟᴛʜ L. Rᴇᴠ. 661, 666 (2021).

[8] See Sᴜʙsᴛᴀɴᴄᴇ Aʙᴜsᴇ & Mᴇɴᴛᴀʟ Hᴇᴀʟᴛʜ Sᴇʀᴠɪᴄᴇs Aᴅᴍɪɴɪsᴛʀᴀᴛɪᴏɴ, Cɪᴠɪʟ Cᴏᴍᴍɪᴛᴍᴇɴᴛ ᴀɴᴅ ᴛʜᴇ Mᴇɴᴛᴀʟ Hᴇᴀʟᴛʜ Cᴀʀᴇ Cᴏɴᴛɪɴᴜᴜᴍ: Hɪsᴛᴏʀɪᴄᴀʟ Tʀᴇɴᴅs ᴀɴᴅ Pʀɪɴᴄɪᴘʟᴇs ғᴏʀ Lᴀᴡ ᴀɴᴅ Pʀᴀᴄᴛɪᴄᴇ at 12, 15, 17 (2019), https://www.samhsa.gov/sites/default/files/civil-commitment-continuum-of-care.pdf.

[9] See James Diven, Note, Rewriting Kendra’s Law: A More Ethical Approach to Mental Health Treatment, 43 Pᴀᴄᴇ L. Rᴇᴠ. 174, 185 (2022).

[10] See Ali Watkins, A Horrific Crime on the Subway Led to Kendra’s Law. Years Later, Has It Helped?, N.Y. Tɪᴍᴇs (Sept. 11, 2018), https://www.nytimes.com/2018/09/11/nyregion/kendras-law-andrew-goldstein-subway-murder.html.

[11] See Diven, Rewriting Kendra’s Law at 184.

[12] Sᴜʙsᴛᴀɴᴄᴇ Aʙᴜsᴇ & Mᴇɴᴛᴀʟ Hᴇᴀʟᴛʜ Sᴇʀᴠɪᴄᴇs Aᴅᴍɪɴɪsᴛʀᴀᴛɪᴏɴ, Cɪᴠɪʟ Cᴏᴍᴍɪᴛᴍᴇɴᴛ ᴀɴᴅ ᴛʜᴇ Mᴇɴᴛᴀʟ Hᴇᴀʟᴛʜ Cᴀʀᴇ Cᴏɴᴛɪɴᴜᴜᴍ, supra note 7 at 1.

[13] Rachel A. Scherer, Note, Toward a Twenty-First Century Civil Commitment Statute: A Legal, Medical, and Policy Analysis of Preventative Outpatient Treatment, 4 Iɴᴅ. Hᴇᴀʟᴛʜ. L. Rᴇᴠ 361, 390-1 (2007).

[14] See id. at 389.

[15] See Sᴜʙsᴛᴀɴᴄᴇ Aʙᴜsᴇ & Mᴇɴᴛᴀʟ Hᴇᴀʟᴛʜ Sᴇʀᴠɪᴄᴇs Aᴅᴍɪɴɪsᴛʀᴀᴛɪᴏɴ, Cɪᴠɪʟ Cᴏᴍᴍɪᴛᴍᴇɴᴛ ᴀɴᴅ ᴛʜᴇ Mᴇɴᴛᴀʟ Hᴇᴀʟᴛʜ Cᴀʀᴇ Cᴏɴᴛɪɴᴜᴜᴍ, supra note 8 at 28.

[16] Diven, Rewriting Kendra’s Law at 186.

[17] See Scherer, Toward a Twenty-First Century Civil Commitment Statute at 390-94.

65 views0 comments

Recent Posts

See All

Comments


bottom of page