A lawsuit in New York challenging the constitutionality of Kendra’s Law, which provides assisted outpatient treatment for people with mental illness, has stirred a nationwide debate about assisted outpatient treatment programs. Major civil rights and mental health organizations have weighed in on both sides of the issue and will defend their positions as the case moves through the New York judicial system.

The case, which currently sits in New York Supreme Court, a trial-level court but not the state’s highest court, hinges on the issue of whether it is legal to administer medication forcibly to outpatients without a competency inquiry. Fifteen organizations, including the New York Civil Liberties Union, the Bazelon Center for Mental Health Law, and the Mental Health Association of New York State, have filed an amicus curiae brief in opposition to certain aspects of the law. These groups claim that administering medication to a patient without first determining whether he or she is competent enough to refuse the medication infringes on the patient’s rights and is in conflict with the New York state constitution.

Cliff Zucker, J.D., supports that argument. He is executive director of Disability Advocates Inc., one of the groups that filed an amicus brief challenging certain aspects of the law.

"Our position is clearly based on New York law established in 1986 stating that in an inpatient setting, a person cannot be forced to take psychotropic medication or ECT unless a court finds clear and convincing evidence that he or she cannot make a rational decision for themselves," he emphasized. "If the court finds that the person with mental illness has rational reasons for not wanting to accept treatment, then the court would have to honor that."

He also believes that the patient’s refusal of treatment will open up a therapeutic dialogue between doctor and patient that would be otherwise absent in a forced-medication scenario.

However, advocates for Kendra’s Law, which was originally going to be named the "Assisted Outpatient Treatment Act," believe that it will help patients in dire need of treatment. Supporters of the law include the Treatment Advocacy Center (TAC), the National Alliance on Mental Illness in New York (NAMI NY), and several people with relatives who either need services provided by Kendra’s Law now or may in the future. Supporters of Kendra’s Law do not deem a competency inquiry necessary because they believe that anyone who can meet all of Kendra’s Law’s eligibility requirements is, based on clinical history and present condition, incapable of managing his or her own treatment.

To be eligible for treatment under the Kendra’s Law program, a person must be over age 18, diagnosed with a mental illness, and incapable of surviving safely in the community without supervision. He or she must either have been hospitalized twice in the past three years as a result of treatment noncompliance or make one or more acts, attempts, or threats of serious and violent behavior toward self or others in the preceding two years, must be unlikely to participate voluntarily in treatment, and, most importantly, be in need of assisted outpatient treatment as determined by clinicians.

Jonathan Stanley, J.D., assistant director of TAC, explained the center’s support for the law. "The need for Kendra’s Law is undeniable. It got 191 out of the 197 votes cast in the legislature. We hope that, like its politicians, New York’s judges will realize that only treatment can liberate those imprisoned by the symptoms of untreated mental illness," he told Psychiatric News.

Proposed by New York Attorney General Eliot Spitzer, Kendra’s Law was passed a year ago, a short time after the tragic death of Kendra Webdale (Psychiatric News, October 1, 1999). In early 1999 Webdale was killed after Andrew Goldstein, a man in the grip of psychosis, shoved her into the path of a moving subway train in New York City. Goldstein had been diagnosed with schizophrenia and was not taking his prescribed medications at the time of the incident.

The Kendra’s Law program is based upon a pilot program for assisted outpatient treatment established in July 1995 at New York City’s Bellevue Hospital. Under the pilot program, which expires on September 30, if the patient had a court order for forced medication, the hospital had to demonstrate that the patient lacked the capacity to make a treatment decision as a result of mental illness. However, this clause was removed in the formulation of Kendra’s Law, and opponents maintain that administering medications to patients in the program without a competency hearing is unconstitutional according to New York State law.

Howard Telson, M.D., director of the Bellevue Outpatient Commitment Pilot Program, believes that the term "capacity" is part of the problem.

"Capacity is a legal term. There hasn’t been enough discussion between the legal and the medical communities about the meaning of capacity," he told Psychiatric News. "I believe that the term is understood differently across disciplines, and this is the basis for some of the disagreement."

Telson also predicted that adding the capacity clause for patients who have court orders for medication wouldn’t disrupt clinical practice. "Based on years of clinical and administrative experience with outpatient commitment, I don’t believe the implementation of Kendra’s Law would be much affected if it was amended to require a finding of ‘lack of capacity’ before a judge may order an outpatient to take psychotropic medication."

Michael J. Silverberg, president of NAMI NY and New York City Metro, disagreed. "A competency proceeding for each patient requires another trial and more psychiatrists, " he commented. "If families are required to go through competency inquiries at great expense, the law will probably remain unused most of the time. It would become a very unwieldy proceeding, and perhaps those who are resisting the law have this in mind—that by loading it with expensive procedures, it becomes something that the ordinary family can’t utilize any longer."

Utility is one of the law’s assets, according to David Trachtenberg, M.D., director of the Kendra’s Law Program for Brooklyn and Staten Island, who believes that Kendra’s Law serves two functions. "Not only does it bind the patient to the treatment, but it binds the system to the patient," he said. "This is unprecedented with regard to New York state law."

"My son could be a poster boy for Kendra’s Law," said a father whose son had received outpatient treatment under the Bellevue pilot program. His son, who graduated magna cum laude from Cornell University, began to deteriorate while in college and descended into a battle with mental illness that landed him in hospitals every few months.

"He went to the hospital, they treated him and handed him a prescription, and told him to find a doctor for follow-up. He was feeling better as he left the hospital, and then he would stop taking his medications, decompensate, get picked up by the police, and end up back in the hospital," the father told Psychiatric News.

"Finally, providence intervened. He got in trouble, and my son ended up in the Bellevue pilot program in 1997," the father added. Since being in the program, a case manager has monitored his son’s medication intake and encouraged him to become a part of day treatment programs. He sent out resumes and just began a full-time job.

"Kendra’s Law is a blessing, and it certainly helped my son," the father said.

[In re Dowler, No. 9275/00 (N.Y. Sup. Ct., Kings County)]