Waging a war on drugs: Administering a lethal dose to Kendra's law

Fordham Law Review

Volumn 68, Issue 6, 2000, Pages 2401-2443

  Gutterman, Jennifer ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

PSYCHOTROPIC AGENT;

ARTICLE; CIVIL RIGHTS; FORECASTING; FORENSIC PSYCHIATRY; HISTORY; HUMAN; LEGAL ASPECT; MENTAL DISEASE; OUTPATIENT; TREATMENT REFUSAL; UNITED STATES;

CIVIL RIGHTS; COMMITMENT OF MENTALLY ILL; FORECASTING; HISTORY, 18TH CENTURY; HISTORY, 19TH CENTURY; HISTORY, 20TH CENTURY; HUMANS; MENTAL DISORDERS; OUTPATIENTS; PSYCHOTROPIC DRUGS; TREATMENT REFUSAL; UNITED STATES;

EID: 0034182358     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (372)

1. Elaine Sutton Mbionwu, Involuntary Outpatient Commitment: If It Isn't Voluntary . . . Maybe It Isn't Treatment, 4 Protection & Advocacy Systems News 1, 1 (Winter, 1999) 〈http://www.protectionandadvocacy.com/PANewsWin99.htm〉.
2. See American Psychiatric Association, Public Information: Violence and Mental Illness (visited Jan. 22, 2000) 〈http://www.psych.org/psych/htdocs/public_info/ violen∼1.htm〉. This fear is embellished by movies like "Psycho!" or "splashy news accounts of serial killer trials where the word 'insane' . . . is heard often." Id.
3. See Lisa Anderson, Attacks Spur Call to Force Medications, Chi. Trib., June 1, 1999, at 1; Jack Guastaferro, Forced Treatment Doesn't Help People Battling Mental Illness, Buffalo News, March 19, 1999, at 2B; Carolyn Thompson, Need Seen to Plug Holes in Care of Mentally Ill, Associated Press Newswires, Feb. 22, 1999, at 1.
4. See Lisa Anderson, Attacks Spur Call to Force Medications, Chi. Trib., June 1, 1999, at 1; Jack Guastaferro, Forced Treatment Doesn't Help People Battling Mental Illness, Buffalo News, March 19, 1999, at 2B; Carolyn Thompson, Need Seen to Plug Holes in Care of Mentally Ill, Associated Press Newswires, Feb. 22, 1999, at 1.
5. See Lisa Anderson, Attacks Spur Call to Force Medications, Chi. Trib., June 1, 1999, at 1; Jack Guastaferro, Forced Treatment Doesn't Help People Battling Mental Illness, Buffalo News, March 19, 1999, at 2B; Carolyn Thompson, Need Seen to Plug Holes in Care of Mentally Ill, Associated Press Newswires, Feb. 22, 1999, at 1.
6. See Anderson, supra note 3.
7. The term schizophrenia means "splitting of the mind," and involves an "imbalance between emotional reactions and the thought content associated with the emotions." Dennis E. Cichon, The Right to "Just Say No": A History and Analysis of the Right to Refuse Antipsychotic Drugs, 53 La. L. Rev. 283, 292 (1992). Schizophrenia is a condition that splits apart the "normal integrated functioning of intellect, emotion, and behavior." Barry Blackwell, Schizophrenia and Neuroleptic Drugs: A Biopsychosocial Perspective, in Refusing Treatment in Mental Health Institutions - Values in Conflict 4 (A. Edward Doudera & Judith P. Swazey eds., 1982).
8. The term schizophrenia means "splitting of the mind," and involves an "imbalance between emotional reactions and the thought content associated with the emotions." Dennis E. Cichon, The Right to "Just Say No": A History and Analysis of the Right to Refuse Antipsychotic Drugs, 53 La. L. Rev. 283, 292 (1992). Schizophrenia is a condition that splits apart the "normal integrated functioning of intellect, emotion, and behavior." Barry Blackwell, Schizophrenia and Neuroleptic Drugs: A Biopsychosocial Perspective, in Refusing Treatment in Mental Health Institutions - Values in Conflict 4 (A. Edward Doudera & Judith P. Swazey eds., 1982).
9. See, e.g., Nina Bernstein, Hospitals Face Lawsuit by Kin of Victim in Subway Push, N.Y. Times, May 25, 1999, at B1 (describing the incident and developments in New York's outpatient commitment law in response to Kendra Webdale's tragic death); see also supra note 3 (listing articles that describe the horrific death of Kendra Webdale). In March, 2000, Andrew Goldstein was found guilty of second-degree murder for killing Kendra Webdale and was sentenced to 25-years-to-life in state prison. See Guilty - and Insane, N.Y. Daily News, March 24, 2000, at 54; Pushing the Insane into Jail, N.Y. Post, March 24, 2000, at 28.
10. See, e.g., Nina Bernstein, Hospitals Face Lawsuit by Kin of Victim in Subway Push, N.Y. Times, May 25, 1999, at B1 (describing the incident and developments in New York's outpatient commitment law in response to Kendra Webdale's tragic death); see also supra note 3 (listing articles that describe the horrific death of Kendra Webdale). In March, 2000, Andrew Goldstein was found guilty of second-degree murder for killing Kendra Webdale and was sentenced to 25-years-to-life in state prison. See Guilty - and Insane, N.Y. Daily News, March 24, 2000, at 54; Pushing the Insane into Jail, N.Y. Post, March 24, 2000, at 28.
11. See, e.g., Nina Bernstein, Hospitals Face Lawsuit by Kin of Victim in Subway Push, N.Y. Times, May 25, 1999, at B1 (describing the incident and developments in New York's outpatient commitment law in response to Kendra Webdale's tragic death); see also supra note 3 (listing articles that describe the horrific death of Kendra Webdale). In March, 2000, Andrew Goldstein was found guilty of second-degree murder for killing Kendra Webdale and was sentenced to 25-years-to-life in state prison. See Guilty - and Insane, N.Y. Daily News, March 24, 2000, at 54; Pushing the Insane into Jail, N.Y. Post, March 24, 2000, at 28.
12. See Nina Bernstein, Frightening Echo in Tales of Two in Subway Attacks, N.Y. Times, June 28, 1999, at A1.
13. See id.
14. Although these "headline grabbing" incidents were committed by mentally ill individuals, such random acts of violence do not occur very often. Only about "4% of all violence is committed by mentally ill people, and much of it is against family members." Julie Marquis & Dan Morain, The Broken Contract: Rights of Mentally Ill Pitted Against Public, Patient Safety Debate, L.A. Times, Nov. 23, 1999, at A1. Furthermore, research has shown no direct correlation between violence and mental disorder. See APA, supra note 2.
15. Although these "headline grabbing" incidents were committed by mentally ill individuals, such random acts of violence do not occur very often. Only about "4% of all violence is committed by mentally ill people, and much of it is against family members." Julie Marquis & Dan Morain, The Broken Contract: Rights of Mentally Ill Pitted Against Public, Patient Safety Debate, L.A. Times, Nov. 23, 1999, at A1. Furthermore, research has shown no direct correlation between violence and mental disorder. See APA, supra note 2.
16. See infra notes 56-59 and accompanying text.
17. These programs seek to "coordinate care and provide as many services as possible in the consumer's own environment." Jeffrey Draine, Conceptualizing Services Research on Outpatient Commitment, 24 J. of Behav. Health Services & Res. 306, 306 (1997).
18. N.Y. Mental Hyg. Law § 9.60 (McKinney 1999); infra Part I.B. (describing outpatient commitment laws, with a concentration on Kendra's Law).
19. N.Y. Mental Hyg. Law § 9.60(a)(1). Assisted outpatient treatment" in New York is a form of coercive, involuntary commitment whereby mentally ill individuals are ordered to comply with psychiatric and medical treatment in outpatient settings. See Group for the Advancement of Psychiatry ("GAP"), Forced Into Treatment: The Role of Coercion in Clinical Practice 65 (1994).
20. See, e.g., Julian E. Barnes & Susan Sachs, Man Shot by Police Told Hospital Staff of Violent Impulses, N.Y. Times, Sept. 3, 1999, at A1 (referring to commitment procedures in New York prior to Kendra's Law). Today, in order for an inpatient to be civilly committed in New York, an application for admission must be executed by a roommate, relative, director, or officer, and must be accompanied by certificates of two examining physicians maintaining that the patient is mentally ill and in need of immediate inpatient treatment to prevent a dangerous situation. See N.Y. Mental Hyg. Law § 9.27 (McKinney 1994). If an individual can live safely outside an institution, and is not dangerous to herself or others, due process will not tolerate her involuntary inpatient commitment irrespective of whether treatment may be beneficial. See O'Connor v. Donaldson, 422 U.S. 563, 576 (1975); In re Harry M., 468 N.Y.S.2d 359, 363-64 (App. Div. 2d Dep't 1983). Moreover, the danger that a mentally ill individual poses to herself or others must be a "substantial threat to [her] physical well-being to justify [inpatient] commitment." In re Harry M., 468 N.Y.S.2d at 364.
21. See N.Y. Mental Hyg. Law § 9.61 (detailing New York's involuntary outpatient commitment law before the enactment of Kendra's Law).
22. See Guastaferro, supra note 3 (describing the facets of Kendra's Law and involuntary outpatient commitment in general).
23. See N.Y. Mental Hyg. Law § 9.60(a)(1) (McKinney 1999).
24. See E. Fuller Torrey & Mary T. Zdanowicz, Kendra's Law - The Culmination of a 10-Year Battle For Assisted Outpatient Treatment in New York, Catalyst: Treatment Advocacy Center, Nov/Dec. 1999, at 2; Health Policy Tracking Service, Fact Sheet: Outpatient Civil Commitment (July, 14, 1999) 〈http://www.ncsl.org/ programs/health/hpts/commit.htm〉.
25. See E. Fuller Torrey & Mary T. Zdanowicz, Kendra's Law - The Culmination of a 10-Year Battle For Assisted Outpatient Treatment in New York, Catalyst: Treatment Advocacy Center, Nov/Dec. 1999, at 2; Health Policy Tracking Service, Fact Sheet: Outpatient Civil Commitment (July, 14, 1999) 〈http://www.ncsl.org/ programs/health/hpts/commit.htm〉.
26. See Guastaferro, supra note 3 ("What makes a difference is the scope, flexibility, responsiveness and coordination of community-based psychiatric treatment and rehabilitation services.").
27. See infra Part II.A. (focusing on significant Supreme Court and lower court decisions recognizing an individual's constitutional right to refuse psychotropic medication).
28. See infra Part III.C. (discussing the ambiguities of Kendra's Law).
29. See, e.g., Bruce J. Winick, The Right to Refuse Mental Health Treatment 333-37 (1997) [hereinafter Winick, Mental Health Treatment]. Professor Winick states that: "the potential for successful treatment in many contexts would appear to increase when individuals choose treatment voluntarily rather than through coercion. . . . Indeed, such coercion may backfire, producing a negative 'psychological reactance' that sets up oppositional behavior leading to failure." Id. at 337.
30. See, e.g., Bruce J. Winick, The Right to Refuse Mental Health Treatment 333- 37 (1997) [hereinafter Winick, Mental Health Treatment]. Professor Winick states that: "the potential for successful treatment in many contexts would appear to increase when individuals choose treatment voluntarily rather than through coercion. . . . Indeed, such coercion may backfire, producing a negative 'psychological reactance' that sets up oppositional behavior leading to failure." Id. at 337.
31. Anderson, supra note 3. Coercive treatment is not effective, whether it is imposed on inpatients or outpatients. For example, "[r]esearch shows that those subjected to forced treatment are at increased risk of drug dependence, disabling side effects of medication and . . . [i]t can result in damage to self-esteem and motivation for recovery." Edward S. Kramer, Don't Force Patients into Mental Health Programs, Hartford Courant, Sept. 25, 1999, at A14.
32. See, e.g., Guastaferro, supra note 3 ("The primary barrier to community-based mental-health care has always been inadequate funding.").
33. See Edward B. Beis, Mental Health and the Law 3 (1984); Barbara A. Weiner & Robert M. Wettstein, Legal Issues in Mental Health Care 41 (1993).
34. See Edward B. Beis, Mental Health and the Law 3 (1984); Barbara A. Weiner & Robert M. Wettstein, Legal Issues in Mental Health Care 41 (1993).
35. See Robert D. Miller, Involuntary Civil Commitment of the Mentally Ill in the Post-Reform Era 5 (1987).
36. Clarke Thomas, Mental Illness Treatment: Striking a Balance - Is the 'Least Restrictive Environment' the Best for the Patient and the Rest of Us?, Pittsburgh Post-Gazette, Oct. 20, 1999, at A31.
37. See Weiner & Wettstein, supra note 25, at 42.
38. Miller, supra note 26, at 5. Reformers such as Dorothea Dix and Mrs. E.P.W. Packard revolutionized the care of the mentally ill during the nineteenth century. See id. They "not only shifted the burden of caring for the mentally disabled from the family to the state but also changed the community's attitude, to expand their concern from one of self-protection from the mentally ill, to concern for the disabled members of the community." Weiner & Wettstein, supra note 25, at 42.
39. See Miller, supra note 26, at 5.
40. Id. During this time, there were few procedural protections against wrongful commitments. See id.
41. See Bruce J. Winick, The Right to Refuse Psychotropic Medication: Current State of the Law and Beyond, in The Right to Refuse Antipsychotic Medication 7 (David Rapoport & John Parry eds., 1986).
42. See Marquis & Morain, supra note 9.
43. The term "psychotropic medication" or "antipsychotic medication" refers to drugs such as Thorazine and Lithium, which are used to treat numerous psychotic illnesses, especially schizophrenia. See Winick, Mental Health Treatment, supra note 22, at 61-68; see also Mills v. Rogers, 457 U.S. 291, 293 n.1 (1982) (describing classes of antipsychotic medication and their side effects); Rogers v. Okin, 478 F. Supp. 1342, 1359-60 (D. Mass. 1979), aff'd in part, rev'd in part, 634 F.2d 650 (1st Cir. 1980) (same).
44. See Miller, supra note 26, at 101.
45. Other types of psychotic illnesses include manic-depressive illness, psychotic depressive reaction, paranoia, neuroses, obsessive-compulsive disorders, and psychosis. See Beis, supra note 25, at 363-64.
46. See Winick, Mental Health Treatment, supra note 22, at 68. Before the advent of antipsychotic medication, psychotic patients were often delusional, violent, and extremely withdrawn, and had poor prognoses for returning to society. See id.
47. See Winick, Mental Health Treatment, supra note 22, at 68. Before the advent of antipsychotic medication, psychotic patients were often delusional, violent, and extremely withdrawn, and had poor prognoses for returning to society. See id.
48. See id. at 68. Widespread use of these drugs has been cited as the major reason for the dramatic decrease of the population of mental hospitals. See id. at 69.
49. See Miller, supra note 26, at 209; Winick, Mental Health Treatment, supra note 22, at 9-11. Professor Winick states: Rather than a long-term custodial facility, the hospital has become essentially a short-term medical facility designed to deal with patients in crisis, to diagnose and stabilize them on a course of medication to be continued after discharge, and then to discharge them into the community where their continued medical and social needs would be met in community-based facilities. Winick, Mental Health Treatment, supra note 22, at 68.
50. See Miller, supra note 26, at 209.
51. See Winick, Mental Health Treatment, supra note 22, at 69.
52. See Bruce A. Arrigo, The Contours of Psychiatric Justice: A Postmodern Critique of Mental Illness, Criminal Insanity, and the Law 80 (1996). Drugs such as Thorazine and Lithium relieve psychotic symptoms, including hallucinations, delusions, paranoia, and withdrawal, which eventually leads to the decrease of violent or destructive outbursts. See id.
53. See Bruce A. Arrigo, The Contours of Psychiatric Justice: A Postmodern Critique of Mental Illness, Criminal Insanity, and the Law 80 (1996). Drugs such as Thorazine and Lithium relieve psychotic symptoms, including hallucinations, delusions, paranoia, and withdrawal, which eventually leads to the decrease of violent or destructive outbursts. See id.
54. See Miller, supra note 26, at 116-17.
55. See id. at 233. In addition, "[l]egislators were attracted to the movement by the prospect of saving money by closing hospitals and providing less expensive treatment in the community." Id. at 209. By releasing the mentally ill from hospitals, "[t]he patients, and the money, could all be diverted to community mental health centers." Id. at 233.
56. See A New Look at Treating the Mentally Ill, Buffalo News, Nov. 16, 1999, at B2.
57. The "least restrictive environment" or "least restrictive alternative" doctrine requires the government to pursue its ends by means narrowly tailored so as not to unnecessarily encroach on important competing interests, such as the constitutional rights to liberty and privacy. See Beis, supra note 25, at 193 (citation omitted).
58. Miller, supra note 26, at 116.
59. See Cichon, supra note 5, at 355; Douglas S. Stransky, Comment, Civil Commitment and the Right to Refuse Treatment: Resolving Disputes from a Due Process Perspective, 50 U. Miami L. Rev. 413, 437 (1996). The Supreme Court has invoked this doctrine in a number of contexts where government action has unnecessarily restricted individual liberties, such as the right to association, privacy, and freedom from bodily restraint. See O'Connor v. Donaldson, 422 U.S. 563, 580 (1975) (bodily restraint); Griswold v. Connecticut, 381 U.S. 479, 485 (1965) (privacy); Shelton v. Tucker, 364 U.S. 479, 488 (1960) (association).
60. 364 U.S. 479 (1960).
61. Id. at 488.
62. See Beis, supra note 25, at 195. The first case in the mental health arena to apply this doctrine was Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966) (en banc). In this civil commitment case, Chief Judge Bazelon held that the government has an affirmative duty to explore all treatment options so that "[d]eprivations of liberty . . . [do] not go beyond what is necessary for [the patient's] protection." Id. at 660.
63. See Beis, supra note 25, at 193.
64. Miller, supra note 26, at 233.
65. See id. at 209-10.
66. See id. at 233; Beis, supra note 25, at 193.
67. These "other means" include expanding the responsibilities of local police, peace officers, and sheriff's departments to include the apprehending and transporting of individuals with serious mental illnesses to local hospitals for psychiatric evaluations. See, e.g., N.Y. Mental Hyg. Law § 9.60(h)(3), (n) (McKinney 1999) (detailing the extended responsibilities of police officers and members of the sheriffs department).
68. See Elizabeth Dickinson Furlong, Coercion in the Community: The Application of Rogers Guardianship to Outpatient Commitment, 21 New Eng. J. on Crim. & Civ. Confinement 485, 486 (1995); MadNation, Replacing Outpatient Commitment Initiatives with Strategies that Work to Engage People in Need (visited Jan. 21, 2000) 〈http://www.madnation.org/news/kendra/strategiesthatwork.htm〉 [hereinafter Strategies that Work]. Such outpatient treatment may consist of rehabilitation programs and therapy, as well as medication. See supra note 17 and accompanying text.
69. See Elizabeth Dickinson Furlong, Coercion in the Community: The Application of Rogers Guardianship to Outpatient Commitment, 21 New Eng. J. on Crim. & Civ. Confinement 485, 486 (1995); MadNation, Replacing Outpatient Commitment Initiatives with Strategies that Work to Engage People in Need (visited Jan. 21, 2000) 〈http://www.madnation.org/news/kendra/strategiesthatwork.htm〉 [hereinafter Strategies that Work]. Such outpatient treatment may consist of rehabilitation programs and therapy, as well as medication. See supra note 17 and accompanying text.
70. See Elizabeth Dickinson Furlong, Coercion in the Community: The Application of Rogers Guardianship to Outpatient Commitment, 21 New Eng. J. on Crim. & Civ. Confinement 485, 486 (1995); MadNation, Replacing Outpatient Commitment Initiatives with Strategies that Work to Engage People in Need (visited Jan. 21, 2000) 〈http://www.madnation.org/news/kendra/strategiesthatwork.htm〉 [hereinafter Strategies that Work]. Such outpatient treatment may consist of rehabilitation programs and therapy, as well as medication. See supra note 17 and accompanying text.
71. See, e.g., A New Look at Treating the Mentally Ill, supra note 45 (discussing the goals of the deinstitutionalization movement and community treatment).
72. See Bruce D. Sales & Daniel W. Shuman, Law, Mental Health and Mental Disorder 233 (1996); Weiner & Wettstein, supra note 25, at 59; see also N.Y. Mental Hyg. Law § 9.60(a)(1) (describing categories of outpatient services that may be ordered, such as medication, therapy, and/or case management).
73. See Health Policy Tracking Service, supra note 18 (summarizing states' use of outpatient commitment laws).
74. Compare N.C. Gen. Stat. § 122C-265 (1998) ("In no event may a respondent . . . meet[ing] the outpatient commitment criteria be physically forced to take medication or forcibly detained for treatment pending a district court hearing."), with N.Y. Mental Hyg. Law § 9.60(n) ("[I]f such assisted outpatient refuses to take medications as required by the court order . . . the director . . . may direct peace officers . . . or police officers . . . to take into custody" such person).
75. See, e.g., Ariz. Rev. Stat. Ann. § 36-540(A)(1), (2) (West 1993 & Supp. 1999) (maintaining that dangerous or "gravely disabled" patients may be ordered into outpatient treatment, or a combination of inpatient and outpatient treatment); see also N.D. Cent. Code § 25-03.1-21 (1995 & Supp. 1999) (discussing alternatives to inpatient hospitalization for dangerous patients).
76. See Ala. Code § 22-52-10.2 (1975) (maintaining that an individual may be committed on an outpatient basis if she is not dangerous, but rather "will, if not treated . . . continue to experience deterioration"); Haw. Rev. Stat. Ann. § 334-121 (Michie 1993) (prescribing involuntary outpatient commitment for patients necessitating treatment in order to prevent a relapse or deterioration); N.Y. Mental Hyg. Law § 9.60(c) (describing outpatient commitment and the criteria for court-ordered treatment for individuals who are not imminently dangerous).
77. See MadNation, Seven Misconceptions About Kendra's Law, (visited Jan. 21, 2000) 〈http://www.madnation.org/news/kendra/misconceptions.htm〉 [hereinafter Seven Misconceptions].
78. See MadNation, Strategies that Work, supra note 57.
79. See GAP, supra note 13, at 65; Miller, supra note 26, at 211 (citing I. Keilitz & T. Hall, State Statutes Governing Involuntary Outpatient Civil Commitment, 9 Mental & Physical Disability L. Rep. 378-97 (1985)). While New York was the only state that prohibited outpatient commitment, "only 26 states and the District of Columbia made explicit provisions for it. The remaining 24 states neither explicitly prohibited nor established procedures for outpatient commitments." Miller, supra note 26, at 211.
80. See Miller, supra note 26, at 210.
81. See id. at 210-11.
82. See Sales & Shuman, supra note 59, at 233.
83. See, e.g., Ariz. Rev. Stat. Ann. § 36-540.01 (West 1993 & Supp. 1999) (prescribing conditions necessary for ordering conditional outpatient treatment for patients no longer requiring inpatient hospitalization); N.H. Rev. Stat. Ann. § 135-C:50 (1996) (authorizing outpatient treatment as a condition of discharge); see also Miller, supra note 26, at 210 (describing the different types of outpatient commitment, including conditional release).
84. See Marvin S. Swartz et al., New Directions in Research on Involuntary Outpatient Commitment, 46 Psychiatric Services, 381, 382 (1995). However, "[o]utpatient commitment differs from conditional release in that the court, rather than treatment personnel, authorize[s] the commitment [procedure]." Weiner & Wettstein, supra note 25, at 59. Furthermore, outpatient commitment is determined at the initial commitment hearing, while conditional release occurs after the patient has already been institutionalized. See Miller, supra note 26, at 210.
85. See, e.g., Ariz. Rev. Stat. Ann. § 36-540 (West 1993 & Supp. 1999). A. If the court finds by clear and convincing evidence that the proposed patient, as a result of mental disorder, is a danger to himself, is a danger to others, is persistently or acutely disabled or is gravely disabled and in need of treatment, and is either unwilling or unable to accept voluntary treatment, the court shall order the patient to undergo one of the following: 1. Treatment in a program of outpatient treatment. 2. Treatment in a program consisting of combined inpatient and outpatient treatment. C. The court may order the proposed patient to undergo outpatient or combined inpatient and outpatient treatment . . . . Id.
86. See Miller, supra note 26, at 217-18 (discussing outpatient commitment statutes in North Carolina, Hawaii, and Arizona). These laws authorize outpatient commitment for individuals who are not presently violent or imminently dangerous, but are merely mentally ill and psychologically deteriorating. See id. at 218.
87. See Arrigo, supra note 42, at 209.
88. See John Petrila, Involuntary Outpatient Commitment Forum: A Summary of Issues and Research (Fiscal Year 1998-99) 〈http://www.fmhi.usf.edu/institute/pubs/ pdf/mhlp/outpatient∼forum-1999.pdf〉; see also supra note 63 and accompanying text.
89. Arrigo, supra note 42, at 209.
90. See N.Y. Mental Hyg. Law § 9.61 (McKinney 1994).
91. Id. § 9.61(b).
92. Id. § 9.61(a).
93. See id. § 9.61(d-f) (detailing the procedure for involuntary outpatient commitment).
94. See id. § 9.61(a).
95. See id.
96. Section 9.61(c) of the Mental Hygiene Law set out the criteria for involuntary outpatient treatment: (1) A patient may be ordered to obtain involuntary outpatient treatment if the court finds that: (i) the patient is eighteen years of age or older; and (ii) the patient is suffering from a mental illness; and (iii) the patient is incapable of surviving safely in the community without supervision, based on a clinical determination; and (iv) the patient is hospitalized at the hospital designated pursuant to subdivision (b) of this section to take part in the pilot project . . . and (v) the patient has a history of lack of compliance with treatment that has necessitated involuntary hospitalization at least twice within the last eighteen months; and (vi) the patient is, as a result of his or her mental illness, unlikely to voluntarily participate in the recommended treatment pursuant to the treatment plan; and (vii) in view of the patient's treatment history and current behavior, the patient is in need of involuntary outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others . . . and (viii) it is likely that the patient will benefit from involuntary outpatient treatment; and (ix) the involuntary outpatient treatment program of such hospital is willing and able to provide the involuntary outpatient treatment ordered. Id. § 9.61(c)(1) (emphasis added).
97. See id. § 9.61(c)(1)(iv).
98. See id. § 9.61(d)(1).
99. See id. § 9.61(c).
100. See id. § 9.61(d)(2)-(3).
101. See id. § 9.61(k).
102. See id. § 9.61(c)(2). This section stated: A court may order the involuntary administration of psychotropic drugs as part of an involuntary outpatient treatment program if the court finds the hospital has shown by clear and convincing evidence that the patient lacks the capacity to make a treatment decision as a result of mental illness and the proposed treatment is narrowly tailored to give substantive effect to the patient's liberty interest in refusing medication, taking into consideration all relevant circumstances, including the patient's best interest, the benefits to be gained from the treatment, the adverse side effects associated with the treatment and any less intrusive alternative treatments. Id. § 9.61(c)(2) (emphasis added).
103. See id.
104. See id. § 9.61(f)(2), (k)(2).
105. See Torrey & Zdanowicz, supra note 18, at 3.
106. See, e.g., Kramer, supra note 23 (maintaining that "[o]utpatient commitment simply does not work").
107. See, e.g., Anderson, supra note 3 (describing incidents where individuals were injured by schizophrenics who refused to take medication); Fredric U. Dicker, State Law Can Force Mentally Ill Into Hosp[ital], N.Y. Post, Nov. 20, 1999, at 3 (same). For other examples of these tragic incidents, see Lynn Hicks, Critics: Commitment law leaves some mentally ill untreated, Des Moines Reg., Oct. 19, 1999, at 1A. See also supra note 3 and accompanying text (describing recent violent acts committed by mentally ill individuals).
108. See, e.g., Anderson, supra note 3 (describing incidents where individuals were injured by schizophrenics who refused to take medication); Fredric U. Dicker, State Law Can Force Mentally Ill Into Hosp[ital], N.Y. Post, Nov. 20, 1999, at 3 (same). For other examples of these tragic incidents, see Lynn Hicks, Critics: Commitment law leaves some mentally ill untreated, Des Moines Reg., Oct. 19, 1999, at 1A. See also supra note 3 and accompanying text (describing recent violent acts committed by mentally ill individuals).
109. See N.Y. Mental Hyg. Law § 9.60 (McKinney 1999).
110. See id. § 9.61(d) (McKinney 1994).
111. See id. § 9.60(e) (McKinney 1999). These informalities are quite similar to the colloquial procedures of the mid-nineteenth century, which existed prior to the deinstitutionalization movement. See supra notes 30-32 and accompanying text for comparison.
112. See N.Y. Mental Hyg. Law § 9.60(e)(3).
113. See id. § 9.60(n).
114. See id. § 9.60(c)(1)-(7).
115. Kendra's Law gives psychiatrists greater latitude in their subjective determinations of persons eligible for outpatient treatment. Section 9.60(c) lists the criteria for outpatient commitment. See id. Many of section 9.60's criteria for outpatient commitment are identical to those listed in the 1994 pilot program statute. However, there are a number of criteria that are different from those listed in the previous pilot program, such as: (3) The patient is unlikely to survive safely in the community without supervision . . . (4) The patient has a history of lack of compliance with treatment for mental illness that has: (i) at least twice within the last thirty-six months been a significant factor in necessitating hospitalization . . . or; (ii) resulted in one or more acts of serious violent behavior toward self or others . . . . Id. § 9.60(c)(3)-(4) (emphasis added).
116. Id. § 9.61(c)(iii) (McKinney 1994).
117. N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8(a)(2) (1995). While the legislature is responsible for enacting general laws in New York State, it often delegates rule-making powers to the state's administrative departments and agencies. See id. at UG 1 (User's Guide). These agencies are then empowered to develop and enforce the rules and regulations they find necessary to implement the broad policies adopted by the legislature. See id. The Codes, Rules and Regulations of the State of New York (NYCRR) is the official compilation of these rules, and courts must abide by these policies. See id.
118. N.Y. Mental Hyg. Law § 9.60(c)(3) (McKinney 1999).
119. See id. § 9.60(c)(4)(i)-(ii). Under Kendra's Law, an individual may be ordered to undergo outpatient commitment if she has either been previously institutionalized at least twice within the last thirty-six months or has engaged in serious violent behavior within the past two years. See id.
120. See supra notes 92-93 and accompanying text.
121. Kendra's Law specifies only that medication is an acceptable mode of treatment and that physicians must describe "the beneficial and detrimental physical and mental effects of such medication." N.Y. Mental Hyg. Law § 9.60(h)(4). Moreover, if medication is authorized, the examining physician "shall recommend whether such medication should be self-administered or administered by authorized personnel." Id.
122. See infra notes 246-48 and accompanying text.
123. See supra note 89 and accompanying text.
124. See, e.g., Mills v. Rogers, 457 U.S. 291, 298-300 (1982) (recognizing a mental patient's constitutional right to avoid the unwanted administration of psychotropic drugs).
125. See Cichon, supra note 5, at 293. The decrease in the average length of hospitalization has been attributed to the effectiveness of psychotropic drugs in reducing the severity of psychotic incidents and elongating the interval between relapses. See id. 112. See id.
126. Arrigo, supra note 42, at 80.
127. See Roederick C. White, Sr., What Right to Privacy? The Risk to the Voluntary Mental Health Patient as a Result of Louisiana's Current Forcible Medication Statute, 24 S.U. L. Rev. 1, 31 (1996).
128. Side effects include: drowsiness, seizures, cardiac irregularities, extrapyramidal symptoms, akinesia (physical mobility), dyskinesia, tardive dyskinesia (irreversible neurological disorder), and akathisia (motor restlessness). See id. at 30; Doudera & Swazey, supra note 5, at 16; see also Rivers v. Katz, 67 N.Y.2d 485, 490 n.1 (1986) (describing the most common side effects of antipsychotic drugs).
129. See Doudera & Swazey, supra note 5, at 13.
130. Cichon, supra note 5, at 295.
131. See Arrigo, supra note 42, at 80-83.
132. People v. Medina, 705 P.2d 961, 968 (Colo. 1985).
133. See id.
134. See Miller, supra note 26, at 138.
135. See Cichon, supra note 5, at 314-15. These values of bodily integrity and self-determination are embedded in the "philosophy of Western Civilization." Id. at 314.
136. See Miller, supra note 26, at 138-39.
137. See infra Part II.A.1.
138. See infra Part II.A.2.
139. The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . ." U.S. Const, amend. I.
140. Id.
141. Winick, Mental Health Treatment, supra note 22, at 135; see, e.g., Stanley v. Georgia, 394 U.S. 557, 565 (1969) (holding that "[o]ur whole constitutional heritage rebels at the thought of giving government the power to control men's minds").
142. Winick, Mental Health Treatment, supra note 22, at 135. Professor Winick convincingly argues that "[m]ental processes must remain presumptively immune from governmental control in a system committed to the values of the First Amendment." Id. at 164. He points out that there is no definitive method for "distinguishing 'normal from abnormal'. . . or 'sane from disordered thought.'" Id. (internal quotations omitted). Therefore, subjecting involuntary medication to First Amendment scrutiny "erects a presumption against forced governmental intrusion into the mind, one that may be overcome only on a showing of compelling necessity." Id. at 165.
143. See Bee v. Greaves, 744 F.2d 1387, 1393-94 (10th Cir. 1984) (recognizing that psychotropic drugs can affect one's ability to think and communicate); Davis v. Hubbard, 506 F. Supp. 915, 933 (N.D. Ohio 1980) (noting that forced administration of medication "implicates a person's interest in being able to think and to communicate freely"); Rogers v. Okin, 478 F. Supp. 1342, 1367 (D. Mass. 1979) (maintaining that the power to produce ideas is fundamental to the right to communicate and is entitled to constitutional protection), affd in part, rev'd in part, 634 F.2d 650 (1st Cir. 1980).
144. See supra note 130.
145. See United States v. Brandon, 158 F.3d 947, 953 (6th Cir. 1998); Bee, 744 F.2d at 1393-94 (recognizing that the right to refuse antipsychotic medication is protected by the First Amendment, which implicitly protects the capacity to produce ideas).
146. 462 F. Supp 1131 (D.N.J. 1978).
147. See id. at 1144.
148. See id.
149. Id. at 1147.
150. Winick, Mental Health Treatment, supra note 22, at 174 (citation omitted).
151. See id.
152. See Cichon, supra note 5, at 326.
153. Id.
154. See Deborah A. Dorfman & Michael L. Perlin, Is it More than "Dodging Lions and Wastin' Time"? Adequacy of Counsel, Questions of Competence, and the Judicial Process in Individual Right to Refuse Treatment Cases, 2 Psychol. Pub. Pol'y & L. 114, 122 (1996).
155. See Mills v. Rogers, 457 U.S. 291, 299 (1982) (maintaining that "the Constitution recognizes a liberty interest in avoiding the unwanted administration of antipsychotic drugs" in the hospital context).
156. See infra notes 190-94 and accompanying text.
157. See U.S. Const. amend. V, XIV, § 1. In the early 1800s, due process was viewed primarily as procedural, and its implications were rather limited in scope. See Winick, Mental Health Treatment, supra note 22, at 189-90. Substantive due process theory began to develop prior to the Civil War with the rise of natural rights philosophy. See id. at 190. After the Fourteenth Amendment was ratified in 1868, the notion that the due process clauses imposed both substantive and procedural limits on the government was widely accepted by courts. See id. at 191.
158. See Youngberg v. Romeo, 457 U.S. 307, 315-16 (1982) (holding that the residents of mental retardation facilities have, a liberty interest in personal security and reasonably safe conditions of confinement); Mills, 457 U.S. at 299 (maintaining that both voluntary and involuntary mental hospital patients have a constitutionally recognized liberty interest in avoiding the unwanted administration of antipsychotic medication); Vitek v. Jones, 445 U.S. 480, 494 (1980) (implicating a liberty interest by transferring prisoner to a mental hospital for psychiatric treatment, including psychotropic drugs).
159. See, e.g., Schmerber v. California, 384 U.S. 757, 771-72 (1966) (upholding a compelled blood test of a suspected intoxicated driver against constitutional attack, but recognizing that more substantial intrusions may be treated differently).
160. See, e.g., Youngberg, 457 U.S. at 316 (holding that the "core of the liberty protected by the due process clause" is implicated by subjecting residents of mental retardation facilities to physical restraints (citation omitted)).
161. See, e.g., Winston v. Lee, 470 U.S. 753, 766 (1985) (maintaining that an involuntary surgical operation to remove a bullet from a suspect charged with attempted robbery entailed a severe intrusion on that individual's sense of personal privacy). But see Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 279 n.7 (1990) ("Although many state courts have held that a right to refuse treatment is encompassed by a generalized constitutional right of privacy, we have never so held. We believe this issue is more properly analyzed in terms of a Fourteenth Amendment liberty interest."). Such classification suggests that the Court is unwilling to grant "fundamental" status to the right to refuse medication, because while the rights encompassed within the privacy doctrine are "fundamental," certain liberty interests may be outweighed by a mere rational governmental interest.
162. See Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (deciding that plaintiffs in civil injury suits may not be forced to submit to surgical examinations and that "[n]o right is held more sacred . . . than the right of every individual to the possession and control of his own person, free from all restraint or interference with others" (emphasis added)).
163. Government action that implicates a fundamental right, including rights to reproduction, marriage, contraception, and abortion, must be narrowly tailored to further a compelling governmental interest. See generally Roe v. Wade, 410 U.S. 113 (1973) (abortion); Griswold v. Connecticut, 381 U.S. 479 (1965) (contraception); see also 3 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.3, at 216-21 (3d ed. 1999) (analyzing the standards of review that courts apply to due process challenges).
164. The Supreme Court has adopted an intermediate standard of review that is not as onerous as the strict scrutiny test, but which involves less deference to the legislature than does rational basis review. See Rotunda & Nowak, supra note 150, § 18.3, at 218-21.
165. Government action that does not burden a fundamental right will survive a due process challenge if the government can prove that it rationally relates to a legitimate governmental interest. See United States v. Brandon, 158 F.3d 947, 957 (6th Cir. 1998).
166. See Cichon, supra note 5, at 331-32; see also Winick, Mental Health Treatment, supra note 22, at 284 ("In scrutinizing governmental interests asserted to justify involuntary treatment, courts inevitably engage in a balancing of the interests of the state and of the individual, and the balance is struck differently in different contexts.").
167. See Riggins v. Nevada, 504 U.S. 127, 135 (1992) (deciding that the Fourteenth Amendment affords pre-trial detainees at least as much protection as the "reasonableness" standard); Washington v. Harper, 494 U.S. 210, 224 (1990) (noting that a prisoner's right to avoid unwanted medication is judged "under a 'reasonableness' test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights."(quoting O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)).
168. See Winick, Mental Health Treatment, supra note 22, at 284. "The level of scrutiny to be applied in the circumstances - strict, intermediate, or low level - tells courts performing this constitutional balancing how to weigh the competing state and individual interests."Id.
169. See Winick, Mental Health Treatment, supra note 22, at 284. "The level of scrutiny to be applied in the circumstances - strict, intermediate, or low level - tells courts performing this constitutional balancing how to weigh the competing state and individual interests."Id.
170. 494 U.S. 210 (1990).
171. See id. at 221-22, 228.
172. See id. at 221-22. If a prisoner is not an imminent threat, however, the right to refuse medication may not be infringed. See id. 159. Id. at 223 (emphasis added). The Court adopted a deferential approach to reviewing the discretion of prison authorities in dealing with problems of institutional security. See id. at 223-24.
173. See id.
174. Id.
175. See supra notes 46-52 and accompanying text. If the rights were deemed "fundamental,"the Court would have applied a more stringent standard of review.
176. See supra notes 46-52 and accompanying text.
177. See Winick, Mental Health Treatment, supra note 22, at 272.
178. 504 U.S. 127 (1992).
179. See id. at 129-30.
180. See id. at 136. "Contrary to the dissent's understanding, we do not 'adopt a standard of strict scrutiny.'" Id. (emphasis added).
181. See id. at 135-36; see also Sales & Shuman, supra note 59, at 264 (discussing the standards proposed by the Supreme Court in "right-to-refuse" medication cases); White, supra note 114, at 16 n.80 (same).
182. See Winick, Mental Health Treatment, supra note 22, at 278-79. The Supreme Court in Mills v. Rogers also expressed its assumption that involuntarily administered antipsychotic drugs intrude on a liberty interest protected by the due process clause of the Fourteenth Amendment. See 457 U.S. 291, 299 (1982). In Mills, the Supreme Court granted certiorari to consider the involuntary use of psychotropic drugs for civil patients at the Boston State Hospital. See id. at 293-94. After briefing and oral argument, however, the Supreme Court vacated and remanded the case for reconsideration in light of an intervening decision of the Supreme Judicial Court of Massachusetts that recognized a right to refuse medication on state law grounds. See id. at 303, 306 (remanding the case in the wake of In re Guardianship of Roe, 421 N.E.2d 40 (Mass. 1981), and therefore failing to determine which level of scrutiny is appropriate in involuntary commitment cases).
183. See White, supra note 114, at 16 n.80. The author argues that because these individuals are not criminals, they should be entitled to "at least as much protection as that accorded pretrial detainees." Id.
184. See N.Y. Mental Hyg. Law § 9.60(c), (o) (McKinney 1999).
185. See Stransky, supra note 48, at 432.
186. See id.
187. Washington v. Harper, 494 U.S. 210, 225 (1990).
188. Id. at 223.
189. See Rennie v. Klein, 653 F.2d 836, 838 (3d Cir. 1981) (en banc), vacated, 458 U.S. 1119 (1982), remanded, 720 F.2d 266 (3d Cir. 1983) (remanding for reconsideration in light of the Supreme Court's decision in Youngberg v. Romeo, 457 U.S. 307, 322 (1982), which limited an individual's liberty interest according to the professional judgment of institutional staff); Rogers v. Okin, 478 F. Supp. 1342, 1352 (D. Mass. 1979), aff'd in part, rev'd in part, 634 F.2d 650 (1st Cir. 1980), vacated & remanded sub nom., Mills v. Rogers, 457 U.S. 291, 306 (1982) (remanding case in light of In re Guardianship of Roe, which recognized liberty interests according to Massachusetts state law, rather than the federal constitution).
190. See Rennie, 653 F.2d at 838; Rogers, 478 F. Supp. at 1365.
191. 478 F. Supp. 1342 (D. Mass. 1979).
192. See id. at 1365.
193. Id.
194. See Rogers, 634 F.2d at 654-56.
195. 653 F.2d 836 (3d Cir. 1981) (en banc).
196. See id. at 840.
197. See Rennie, 720 F.2d 266, 269 (3d Cir. 1983).
198. Id.
199. See Weiner & Wettstein, supra note 25, at 125. These decisions provide two models of the right of civilly committed patients to refuse antipsychotic medication in both emergency and non-emergency situations.
200. See, e.g., Large v. Superior Ct., 714 P.2d 399, 407 (Ariz. 1986) (maintaining that competent adult cannot be involuntarily medicated in a non-emergency situation); Anderson v. State, 663 P.2d 570, 571 (Ariz. Ct. App. 1983) (same); People v. Medina, 705 P.2d 961, 963-64 (Colo. 1985) (declaring that even incompetent persons do not automatically lose their right to refuse medication, but rather a judge weighs various factors to make that determination); Superintendent of Belchertown v. Saikewicz, 370 N.E.2d 417, 427 (Mass. 1977) (grounding the right to refuse medication on a constitutional right to privacy); Rivers v. Katz, 67 N.Y.2d 485, 492-93 (1986) (holding that involuntarily committed mental patients have a constitutionally protected liberty interest in refusing medication).
201. See, e.g., Opinion of the Justices, 465 A.2d 484, 488-89 (N.H. 1983) (holding that because antipsychotic drugs have drastic effects upon one's physical well-being, they significantly intrude upon an individual's security and liberty interests).
202. See supra note 187.
203. See Mills v. Rogers, 457 U.S. 291, 300 (1982); Vitek v. Jones, 445 U.S. 480, 488 (1980); In re New York Presbyterian Hosp., 693 N.Y.S.2d 405, 409 (Sup. Ct. 1999).
204. Miller, supra note 26, at 144-45.
205. See Large, 714 P.2d at 406; In re Guardianship of Roe, 421 N.E.2d 40, 51 n.9 (Mass. 1981); Opinion of the Justices, 465 A.2d at 488; Rivers, 67 N.Y.2d at 492-93.
206. See Mills, 457 U.S. at 300. "If the state interest is broader, the substantive protection that the Constitution affords against the involuntary administration of antipsychotic drugs would not determine the actual substantive rights and duties of persons in the State of Massachusetts." Id. at 303 (emphasis omitted).
207. See, e.g., In re Gordon, 619 N.Y.S.2d 235, 236 (Sup. Ct. 1994) (applying New York's due process clause (rather than the federal due process clause), which insures greater protection to an individual's "furtherance of his own desires"); Weiner & Wettstein, supra note 25, at 47.
208. See supra note 148 (citing the Supreme Court's decision in Cruzan v. Director, Missouri Department of Health, which limited the scope of the privacy doctrine in the right-to-refuse treatment context).
209. See Davis v. Hubbard, 506 F. Supp 915, 932-33 (N.D. Ohio 1980); Hondroulis v. Schuhmacher, 553 So. 2d 398, 415 (La. 1989) (maintaining that the state constitution expressly guarantees that each individual has an affirmative 'right to privacy'); In re Guardianship of Roe, 421 N.E.2d 40, 51 n.9 (Mass. 1981) (same); Saikewicz, 370 N.E.2d at 426-27 (same); see also Souder v. McGuire, 423 F. Supp. 830, 832 (E.D. Pa. 1976) (finding that involuntary administration of psychotropic medication amounts to an unwarranted governmental intrusion and is in violation of an individual's privacy rights).
210. 553 So. 2d 398.
211. Id. at 415.
212. Michael R. Flaherty, Annotation, Nonconsensual Treatment of Involuntarily Committed Mentally Ill Persons with Neuroleptic or Antipsychotic Drugs as Violative of State Constitutional Guaranty, 74 A.L.R.4th § 5, 1099, 1108 (1989) (citation omitted).
213. Winick, Mental Health Treatment, supra note 22, at 144 (quoting T. Emerson, Toward a General Theory of the First Amendment 64 (Random House ed. 1966)).
214. Winick, Mental Health Treatment, supra note 22, at 144 (quoting T. Emerson, Toward a General Theory of the First Amendment 64 (Random House ed. 1966)).
215. Psychotropic medication seeks to influence psychological conditions through the use of chemical interventions that affect the mind, behavior, and intellectual functions. See Winick, Mental Health Treatment, supra note 22, at 61 n.3; supra notes 111-17 and accompanying text.
216. See Cichon, supra note 5, at 331-45.
217. See Weiner & Wettstein, supra note 25, at 47; John Kip Cornwell, Understanding the Role of the Police and Parens Patriae Powers in Involuntary Civil Commitment Before and After Hendricks, 4 Psychol. Pub. Pol'y & L. 377, 377-96 (1998) (discussing the history of the police power and parens patriae doctrines).
218. See infra notes 214-27 and accompanying text.
219. See infra notes 229-53 and accompanying text.
220. Arrigo, supra note 42, at 143 (citation omitted). This paternalistic analysis is consistent with the utilitarian view of involuntary treatment. Clinicians who adopt this approach view the morality of coercive treatment by the extent to which it serves the greater good of the individual, society, or both. See Marvin S. Swartz et al., The Ethical Challenges of a Randomized Controlled Trial of Involuntary Outpatient Commitment, J. Behav. Health Services & Res. 35, 37 (Winter 1997) [hereinafter Swartz et al., The Ethical Challenges]. Physicians often regard treatment, even if involuntary, as the "sine qua non of restored functioning and meaningful autonomy." Id. In contrast to the utilitarian approach, the deontological perspective views means as "more important than ends and maintains that . . . the infringement of liberty or damage to the dignity of the individual . . . may, in and of itself, be unacceptable, regardless of the ultimate good served by this form of 'benevolent coercion.'" Id.
221. Arrigo, supra note 42, at 143 (citation omitted). This paternalistic analysis is consistent with the utilitarian view of involuntary treatment. Clinicians who adopt this approach view the morality of coercive treatment by the extent to which it serves the greater good of the individual, society, or both. See Marvin S. Swartz et al., The Ethical Challenges of a Randomized Controlled Trial of Involuntary Outpatient Commitment, J. Behav. Health Services & Res. 35, 37 (Winter 1997) [hereinafter Swartz et al., The Ethical Challenges]. Physicians often regard treatment, even if involuntary, as the "sine qua non of restored functioning and meaningful autonomy." Id. In contrast to the utilitarian approach, the deontological perspective views means as "more important than ends and maintains that . . . the infringement of liberty or damage to the dignity of the individual . . . may, in and of itself, be unacceptable, regardless of the ultimate good served by this form of 'benevolent coercion.'" Id.
222. Arrigo, supra note 42, at 143 (citation omitted). This paternalistic analysis is consistent with the utilitarian view of involuntary treatment. Clinicians who adopt this approach view the morality of coercive treatment by the extent to which it serves the greater good of the individual, society, or both. See Marvin S. Swartz et al., The Ethical Challenges of a Randomized Controlled Trial of Involuntary Outpatient Commitment, J. Behav. Health Services & Res. 35, 37 (Winter 1997) [hereinafter Swartz et al., The Ethical Challenges]. Physicians often regard treatment, even if involuntary, as the "sine qua non of restored functioning and meaningful autonomy." Id. In contrast to the utilitarian approach, the deontological perspective views means as "more important than ends and maintains that . . . the infringement of liberty or damage to the dignity of the individual . . . may, in and of itself, be unacceptable, regardless of the ultimate good served by this form of 'benevolent coercion.'" Id.
223. Youngberg v. Romeo, 457 U.S. 307, 320 (1982) (holding that patients committed to a state mental institution possess certain liberty interests that can be overridden simply by a court's showing that professional judgment was exercised).
224. See Riggins v. Nevada, 504 U.S. 127, 135-38 (1992); Schmerber v. California, 384 U.S. 757, 769-70 (1966).
225. In New York, these limitations have been codified in the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR). See supra note 103 for a more detailed description of the NYCRR.
226. Rivers v. Katz, 67 N.Y.2d 485, 492 (1986) (citations omitted).
227. See Superintendent of Belchertown v. Saikewicz, 370 N.E.2d 417, 424 (Mass. 1977). "[S]uch a doctrine does not threaten either the integrity of the medical profession, the proper role of hospitals in caring for such patients
228. See Rivers, 67 N.Y.2d at 495; see also In re Storar, 52 N.Y.2d 363, 377 (1981) ("The State has a legitimate interest in protecting the lives of its citizens. It may require that they submit to medical procedures in order to eliminate a health threat to the community.").
229. See Cornwell, supra note 203, at 390.
230. See id. States have exercised police powers since the colonial period to protect the community from the violent tendencies of the mentally ill. See id. at 389.
231. See id.
232. See id. at 390. For example, courts have distinctly recognized the Government's authority to enact quarantine laws, and "health laws of every description," which relate to the protection of public safety. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) ("According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.").
233. In New York, for example, the state can only use its police power to medicate an individual who is imminently dangerous. See Rivers, 67 N.Y.2d at 495-96. When the only indication of dangerousness is the commission of a nonviolent or minor crime that does not place the individual or others in immediate danger, the individual's constitutional right to refuse medication outweighs the state's interest.
234. See Cichon, supra note 5, at 337; cf. O'Connor v. Donaldson, 422 U.S. 563, 575 (1975) (finding that a patient cannot be involuntarily committed if she is nondangerous, but failing to directly address whether "dangerousness" is a prerequisite for civil commitment). In this case, the Court balanced the patient's interest in refusing medication against the state's parens patriae authority, rather than its police power. The Court held that a "State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." Id. at 576. Although the Supreme Court did not acknowledge that "dangerousness" is a pre-requisite for commitment, virtually all states statutorily require that an individual be either a danger to himself or to others as a necessary criterion for institutionalization. See Miller, supra note 26, at 19.
235. Cichon, supra note 5, at 337.
236. See id.
237. See id. at 338; see, e.g., Rogers v. Okin, 634 F.2d 650, 659-60 (1st Cir. 1980) (applying a flexible definition of an "emergency" to prevent deterioration for patients at Boston State Hospital who claimed that their constitutional rights were being violated when they were involuntarily medicated).
238. See Rivers, 67 N.Y.2d at 496 (defining an emergency as "imminent danger to a patient or others in the immediate vicinity"); see also Anderson v. State, 663 P.2d 570, 573 (Ariz. Ct. App. 1982) (stating that an emergency situation is "an immediate threat of physical injury"); Rogers v. Commissioner of Dep't of Mental Health, 458 N.E.2d 308, 321 n.25 (Mass. 1983) (maintaining that an emergency calls for "immediate action"); Winick, Mental Health Treatment, supra note 22, at 295.
239. See Rivers, 67 N.Y.2d at 496.
240. N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8(c)(4)(i) (1995).
241. See id. § 527.8(a)(4).
242. A recent overt act is unruly conduct or an act of violence committed by the individual before forced medication may be imposed. While New York does not require an overt act as proof of an "emergency," other states necessitate that this element be proven before ordering medical treatment. See, e.g., Ga. Code Ann. § 37-3-1(9.1) (1999); Minn. Stat. Ann. § 253B.01(17) (West 1998); N.D. Cent. Code § 25-03.1-34(5) (1995); Pa. Stat. Ann. tit. 50, § 7301(b) (West 1999).
243. See N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8(c)(4)(i).
244. See N.Y. Mental Hyg. Law § 9.01 (McKinney 1994).
245. Weiner & Wettstein, supra note 25, at 47.
246. See Winick, Mental Health Treatment, supra note 22, at 289; see also Black's Law Dictionary 1114 (6th ed. 1991) (defining "parens patriae").
247. See Winick, Mental Health Treatment, supra note 22, at 289; see also Black's Law Dictionary 1114 (6th ed. 1991) (defining "parens patriae").
248. See Cornwell, supra note 203, at 377.
249. O'Connor v. Donaldson, 422 U.S. 563, 583 (1975) (Burger, J., concurring) (citation omitted).
250. See Cornwell, supra note 203, at 381.
251. Miller, supra note 26, at 138.
252. See Rivers v. Katz, 67 N.Y.2d 485, 494 (1986); see also N.Y. Mental Hyg. Law § 9.60(o) (McKinney 1999) ("The determination by a court that a patient is in need of assisted outpatient treatment under this section shall not be construed as or deemed to be a determination that such patient is incapacitated [for purposes of guardianship appointment]."). The appointment of a guardian is necessary to provide for the personal needs of that person, "including food, clothing, shelter, health care, or safety and/or to manage the property and financial affairs of that person." N. Y. Mental Hyg. Law § 81.02(a) (McKinney 1996). "Incapacity" is determined by the person's inability to provide for his personal needs and/or property management and inability to understand and appreciate the consequences of such inability. See id. § 81.02(b). The fact that an outpatient under Kendra's Law need not be deemed "incapacitated" reflects an understanding that mental illness is not synonymous with incompetency.
253. 457 U.S. 291 (1982).
254. See id. at 297. The Court of Appeals for the Second Circuit has likewise held that civil commitment fails to raise a presumption of incompetence. See Winters v. Miller, 446 F.2d 65, 68 (2d Cir. 1971).
255. Under New York law, "mental illness" is defined as "an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment and rehabilitation." N.Y. Mental Hyg. Law § 1.03(20). This definition in no way implies that a mentally ill person is also incapacitated. The clear trend in the law is to distinguish between mental illness and incapacity. See infra note 246 for examples of courts that require a separate adjudication of incompetency before ordering involuntary commitment.
256. See, e.g., Kulak v. City of New York, 88 F.3d 63, 74 (2d Cir. 1996) (detailing the rights of involuntary committed patients to refuse medication); Rivers, 67 N.Y.2d at 492 (finding that every individual has the right to control the course of her medical treatment); Superintendent of Belchertown v. Saikewicz, 370 N.E.2d 417, 428 (Mass. 1977) (maintaining that individual autonomy applies equally to mentally ill patients who should not be treated with less dignity or status due to their illnesses).
257. See Winters, 446 F.2d at 70-71; see also Rivers, 67 N.Y.2d at 495 ("[T]here is ample evidence that many patients, despite their mental illness are capable of making rational and knowledgeable decisions about medications. The fact that a mental patient may disagree with the psychiatrist's judgment about the benefit of medication outweighing the cost does not make the patient's decision incompetent."(internal quotations omitted)).
258. See Project Release v. Prevost, 722 F.2d 960, 977-79 (2d Cir. 1983). Absent an overwhelming state interest, such as an emergency, a competent person has the right to refuse such treatment. See In re Guardianship of Roe, 421 N.E.2d 40, 51 (Mass. 1981). "To deny this right to persons who are incapable . . . is to degrade those whose disabilities make them wholly reliant on other, more fortunate, individuals."Id.
259. See Arrigo, supra note 42, at 139. The author points to three paternalistic values underscoring institutionalization: social control, custody, and treatment. See id. at 139-43.
260. See, e.g., Swartz et al., The Ethical Challenges, supra note 206, at 37 (discussing the ethical implications of coercion with respect to mental health).
261. 722 F.2d 960 (2d Cir. 1983).
262. See id. at 971.
263. See Mills v. Rogers, 457 U.S. 291, 298-302 (1982); O'Connor v. Donaldson, 422 U.S. 563, 576 (1975); Project Release, 722 F.2d at 980-81; Winters v. Miller, 446 F.2d 65, 70-71 (2d Cir. 1971); Anderson v. State, 663 P.2d 570, 578-79 (Ariz. Ct. App. 1982); People v. Medina, 705 P.2d 961, 973 (Colo. 1985).
264. Under the "substituted judgment" standard, courts weigh the individual's values and preferences to determine whether she would choose treatment if competent. See Beis, supra note 25, at 157. "[T]he doctrine in its original inception called on the court to 'don the mental mantle of the incompetent.'" Superintendent of Belchertown v. Saikewicz, 370 N.E.2d 417, 431 (Mass. 1977) (citation omitted).
265. See Mills, 457 U.S. at 301-02 (requiring that a court take into consideration a variety of factors before administering psychotropic drugs). These factors include: (1) the ward's expressed preferences regarding treatment; (2) her religious beliefs; (3) the impact upon the ward's family; (4) the probability of adverse side effects; (5) the consequences if treatment is refused; and (6) the prognosis with treatment. See id. at 302 n.19 (citing In re Guardianship of Roe, 421 N.E.2d 40, 57 (Mass. 1981)).
266. See Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 273 (1990); Saikewicz, 370 N.E.2d at 431; Winick, Mental Health Treatment, supra note 22, at 347 n.10.
267. See Rivers v. Katz, 67 N.Y.2d 485, 497 (1986).
268. See Id.; see also Medina, 705 P.2d at 973 (maintaining that the patient's incompetency must be established before the state can administer antipsychotic medication to a nonconsenting mental patient,); Opinion of the Justices, 465 A.2d 484, 489 (N.H. 1983) (same).
269. See Rivers, 67 N.Y.2d at 497. This includes taking into consideration the patient's best interests, benefits and detriments from treatment, and less intrusive alternatives. See id. at 497-98.
270. See In re Guardianship of Roe, 421 N.E.2d at 56-57. Another court also maintained: [I]t cannot be said that it is always in the 'best interests' of the ward to require submission to such treatment. . . . To presume that the incompetent person must always be subjected to what many rational and intelligent persons may decline is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality. Saikowicz, 370 N.E.2d. at 428.
271. See Mary T. Zdanowicz, Treatment Advocacy Center: Statement (released Apr. 29, 1999) 〈http://www.psychlaws.org/PressRoom/stmt%20-20subwayperez. htm〉.
272. See Miller, supra note 26, at 209; supra notes 43-45 and accompanying text (describing the deinstitutionalization movement).
273. A New Look at Treating the Mentally Ill, supra note 45.
274. See Health Policy Tracking Service, supra note 18.
275. D.J. Jaffe, Outpatient Commitment: The Evidence (visited Jan. 28, 2000) 〈http://www.schizophrenia.com/ami/advocacy/outpatient.html〉.
276. See Marquis & Morain, supra note 9.
277. For a more detailed analysis of schizophrenia and neuroleptic drugs, see Doudera & Swazey, supra note 5, at 1-18.
278. See N.Y. Mental Hyg. Law § 9.48 (a), (b) (McKinney 1999).
279. Involuntary Outpatient Commitment Violates Basic Constitutional Rights Guaranteed to All Americans (visited Jan. 28, 2000) 〈http://homes.arealcity.com/LPS/ involuntary.html〉 [hereinafter Commitment Violates Basic Constitutional Rights].
280. See supra Part II.B.
281. See Weiner & Wettstein, supra note 25, at 130. Some examples of states that ubiquitously define "emergency" are New Jersey and Massachusetts. See id. at 123.
282. 458 N.E.2d 308 (Mass. 1983).
283. Id. at 322 (quoting In re Guardianship of Roe, 421 N.E.2d 40, 55 (Mass. 1981)).
284. See id.
285. N.Y. Mental Hyg. Law § 9.60(c)(6) (McKinney 1999).
286. See supra notes 235-53 and accompanying text.
287. See supra notes 235-53 and accompanying text.
288. N.Y. Mental Hyg. Law § 9.60(c)(3).
289. Id. § 9.60(c)(5).
290. See, e.g., Sally Kalson, Mental Health Expert to Share Experiences, Insights, Pittsburgh Post-Gazette, Sept. 28, 1999, at All ("Kendra's Law . . . makes it easier . . . to compel seriously mentally ill patients . . . to receive medication and treatment, as long as the treatment has been shown to help them and they are judged unable to make informed decisions themselves." (emphasis added)).
291. See Beis, supra note 25, at 193. "In the mental health area, the doctrine of least restrictive alternative is a major factor in the decision of where a patient should be treated as an alternative to hospitalization." Id.; see supra notes 46-55 and accompanying text.
292. See Winick, Mental Health Treatment, supra note 22, at 27.
293. Id.
294. Arrigo, supra note 42, at 85. Advocates maintain that "psychosocial treatment in the community introduces the patient to the experiences of living . . . in a nonpsychotic state." Id. (internal quotations omitted).
295. Julie Fields, N.J. Panel Reluctant to Force Mentally Ill to Take Medication, The Record (Bergen County, N.J.), Aug. 4, 1999, at A4.
296. See Randy Kennedy, A Crusader for Mentally Ill Lost Old Allies, N.Y. Times, Aug. 20, 1999, at B2.
297. See Hicks, supra note 94.
298. See Marquis & Morain, supra note 9; supra notes 190-94 and accompanying text.
299. Project Release v. Prevost, 722 F.2d 960, 979 (2d Cir. 1983) (citing Youngberg v. Romeo, 457 U.S. 307 (1982)).
300. See supra notes 145-53 and accompanying text.
301. See supra notes 207-08 and accompanying text.
302. See supra notes 210-53 and accompanying text.
303. See Kulak v. City of New York, 88 F.3d 63, 74 (2d Cir. 1996) (citing N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8(c)(1) (1995)); Rivers v. Katz, 67 N.Y.2d 485, 496 (1986) (citing N.Y. Comp. Codes R. & Regs. tit. 14, § 27.8(b) (1995)). In New York, emergency treatment may be authorized over objection where the patient is "presently dangerous." N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8(c)(1) (1995).
304. N.Y. Comp. Codes R. & Regs. tit. 14, § 527.8(a)(4) (emphasis added).
305. See N.Y. Mental Hyg. Law § 9.60(c)(6) (McKinney 1999). Even organizations dedicated to educating communities on the benefits of assisted outpatient treatment such as the Treatment Advocacy Center, maintain that Kendra's Law is preventative in nature. See Zdanowicz, supra note 254.
306. See Zdanowicz, supra note 254.
307. See, e.g., Ariz. Rev. Stat. Ann. § 36-540(A)(1)-(2) (West Supp. 1999) (mandating that dangerous patients shall undergo either outpatient treatment or combined inpatient and outpatient therapy).
308. In New York, current inpatient commitment laws apply to persons who are regarded to be a danger to themselves or others. See N.Y. Mental Hyg. Law §§ 9.39, 9.40 (McKinney 1994). However, for one to be eligible for outpatient commitment, Kendra's Law establishes a different set of criteria that must first be met. See N.Y. Mental Hyg. Law § 9.60(c) (McKinney 1999).
309. See Commitment Violates Basic Constitutional Rights, supra note 262.
310. See id. ("Allowing forced medication of nondangerous persons would mean that persons with psychiatric diagnoses would lose their right to give informed consent to treatment and their right to refuse unwanted treatment.").
311. See supra notes 210-11 and accompanying text.
312. See supra notes 239-46 and accompanying text.
313. N.Y. Mental Hyg. Law § 9.60(h)(4).
314. See supra notes 234-46 and accompanying text.
315. See supra Part II.B.2.
316. See N.Y. Mental Hyg. Law § 9.60(c)(3).
317. See Winick, Mental Health Treatment, supra note 22, at 349.
318. Id.
319. MadNation, Seven Misconceptions, supra note 64.
320. See id.
321. MadNation, Memorandum of Opposition A.8477 (Silver et al) "The Assisted Outpatient Treatment Act" (visited Jan. 21, 2000) 〈http://www.madnation.org/news/ kendra/opposition.htm〉.
322. See supra notes 46-52 and accompanying text.
323. See Melanie Carroll, Protesters Rail Against Kendra's Law, Associated Press Newswires, Aug. 25, 1999, at 1.
324. See Winick, Mental Health Treatment, supra note 22, at 85.
325. Id. at 336 (citation omitted). Institutionalized patients coerced into accepting medication may come to view themselves as incompetent in ways that could worsen their mental health and social problems. See id. 309. See supra notes 113-16 and accompanying text.
326. Id. at 336 (citation omitted). Institutionalized patients coerced into accepting medication may come to view themselves as incompetent in ways that could worsen their mental health and social problems. See id. 309. See supra notes 113-16 and accompanying text.
327. See Winick, Mental Health Treatment, supra note 22, at 42. "Behavior therapy postulates that maladaptive behaviors are learned and reinforced by the same principles of conditioning as 'normal' responses and . . . may be altered through the systematic application of principles of learning theory." Id. Verbal psychotherapy seeks to ameliorate mental symptoms in the context of a patient-therapist relationship. See id. at 30. Recent research supports the superiority of these approaches and maintains that such interventions have more lasting effects than pharmacological approaches. See id. at 50. Moreover, psychotropic medication presents a greater potential for misuse and abuse than these other treatment methods. See id. at 85.
328. See Project Release v. Prevost, 722 F.2d 960, 973 (2d Cir. 1983); Miller, supra note 26, at 21.
329. APA, supra note 2.
330. See Doudera & Swazey, supra note 5, at 11-13; see also Addington v. Texas, 441 U.S. 418, 430 (1979) ("Psychiatric diagnosis . . . is to a large extent based on medical 'impressions' drawn from subjective analysis and filtered through the experience of the diagnostician.").
331. See Doudera & Swazey, supra note 5, at 11-13.
332. N.Y. Mental Hyg. Law § 9.60(c)(7) (McKinney 1999).
333. See supra notes 114-16 and accompanying text.
334. See Winick, Mental Health Treatment, supra note 22, at 83.
335. See Id. at 79-85.
336. See N.Y. Mental Hyg. Law § 9.60(j)(4). New York's 1994 pilot program did not authorize the self-administration of medication. See generally N.Y. Mental Hyg. Law § 9.61 (McKinney 1994) (failing to specify whether medication can be self-administered).
337. See Bernstein, supra note 6.
338. See id. (describing the "long waiting lists" for admittance into state-financed mental institutions).
339. N.Y. Mental Hyg. Law § 9.60(c)(5) (McKinney 1999).
340. See generally Swartz et al., The Ethical Challenges, supra note 206, at 35 (discussing the goals of outpatient laws in general).
341. MadNation, Replacing Outpatient Commitment, supra note 57.
342. See supra notes 278-322 and accompanying text.
343. See supra notes 286-92 and accompanying text.
344. See supra notes 293-97 and accompanying text.
345. See N.Y. Mental Hyg. Law § 9.61 (c)(2) (McKinney 1994).
346. See S. 5762, 222d Leg. Sess. (N.Y. 1999) (describing the first version of Kendra's Law as it was introduced to the Senate on June 3, 1999).
347. Id. (emphasis added).
348. See generally N.Y. Mental Hyg. Law § 9.60(c) (omitting any reference to the kinds of circumstances that warrant involuntary medication).
349. See, e.g., Ala. Code § 22-52-10.2 (1997); Alaska Stat. § 47.30.835(b) (Michie 1998); Haw. Rev. Stat. Ann. § 334-121 (Michie 1993) (statutes that require an adjudication of incompetency).
350. 1999 Wyo. Sess. Laws 25-10-110(i)(E).
351. See Winick, Mental Health Treatment, supra note 22, at 392-93. Under this theory, patients are empowered to make decisions in advance (while competent) concerning future health care needs arising at a time when they may later be incapacitated. See id. at 392.
352. See Winick, Mental Health Treatment, supra note 22, at 392-93. Under this theory, patients are empowered to make decisions in advance (while competent) concerning future health care needs arising at a time when they may later be incapacitated. See id. at 392.
353. See Winick, Mental Health Treatment, supra note 22, at 393. "Just as individuals have the ability to dispose of their property upon death by expressing their intentions in a will, patients may control future health treatment through the use of advance directive instruments." Id. 336. See N.Y. Mental Hyg. Law § 9.60(c)(8) (McKinney 1999).
354. 497 U.S. 261 (1990).
355. See id. at 278-79.
356. Winick, Mental Health Treatment, supra note 22, at 392.
357. See Health Policy Tracking Service, supra note 18.
358. Id.
359. The New York City Bellevue Study was an unpublished 1998 report by Policy Research Associates. For a more detailed explanation of the results, see Torrey & Zdanowicz, supra note 18, at 2-3.
360. See id at 3. However, the Treatment Advocacy Center also notes that the PRA itself acknowledged flaws in its study due to the small sample size. See id.
361. See MadNation, Replacing Outpatient Commitment, supra note 57.
362. Kramer, supra note 23.
363. See id.
364. Fields, supra note 278.
365. See Bernstein, supra note 6.
366. Put an End to Mental Patients' 'Catch-22', Newsday, July 11, 1999, at B3.
367. MadNation, Seven Misconceptions, supra note 64.
368. See N.Y. Mental Hyg. Law § 9.60(e) (McKinney 1999); supra note 97 and accompanying text.
369. See supra notes 56-59 and accompanying text.
370. Crisis prevention services may include "peer-run programs for hospital diversion and respite, peer-operated warmlines, drop-in centers and self-help groups." Madnation, Arguments Against Outpatient Commitment and Alternatives to Force (visited Jan. 28, 2000) 〈http://www.madnation.org/text/NYarguments.htm〉.
371. See Bruce J. Winick, On Autonomy: Legal and Psychological Perspectives, 37 Vill. L. Rev. 1705, 1755-68 (1992) (summarizing literature on the psychology of choice).
372. Winick, Mental Health Treatment, supra note 22, at 329.