In what may well come to be regarded as a landmark decision, King’s County New York Supreme Court Justice Anthony J. Cutrona ruled in September that Kendra’s Law, the New York state statute allowing court-ordered assisted outpatient treatment, does not violate patients’ constitutional rights to determine their own medical treatment.

The ruling was a combined response to the first two cases challenging the New York law on constitutional grounds. The cases are Urcuyo v. James D. and Trachtenberg v. Jonathon S.

Kendra’s Law provides for court-ordered outpatient treatment for those individuals who are found to be unlikely, due to mental illness, to survive safely in the community without supervision and treatment, based on a clinical determination. For a patient to be subjected to assisted outpatient treatment under the law, he or she must have a history of a lack of compliance with mental health treatment causing the patient to be hospitalized at least twice in the preceding 36 months. Also, the patient must have received services from a forensic or other mental health unit of a correctional facility or have a history of mental illness that has resulted in one or more acts of serious violent behavior, or threats or attempts at serious physical harm, to self or others.

According to the law, the patient must be found, by clear and convincing evidence, to be unlikely to participate voluntarily in the recommended treatment plan. Additionally, in light of the patient’s treatment history and current behavior, the patient must be found in need of assisted outpatient treatment to prevent a relapse or deterioration that would likely result in serious harm to the patient or others.

If a patient fails to comply with the court-ordered assisted treatment, he or she can be held for up to 72 hours while the court determines whether the patient needs to be involuntarily committed to inpatient treatment.

The two cases challenging Kendra’s Law argued that it violated the due process clause of the New York State Constitution in that it does not require a finding of incapacity before the court can order a patient to follow a course of medical treatment. The challenge relied on a 1986 New York case, Rivers v. Katz, that determined "it is a firmly established principle of the common law of New York that every individual of adult years and sound mind has a right to determine what shall be done with his own body and to control the course of his own medical treatment."

Justice Cutrona sided with the mental health professionals. "A Kendra’s Law order does not constitutionally violate the patient’s fundamental right to choose the course of his own medical treatment," he wrote.

"The statute [Kendra’s Law] provides that the physician who is advocating for the Assisted Outpatient Treatment Plan must provide the patient, his treating physician, and, upon the patient’s request, an individual significant to the patient, with the opportunity to actively participate in the development of such a plan."

Cutrona noted that under the procedure set forth by Kendra’s Law, a person subject to an assisted outpatient treatment order has already been proven by clear and convincing evidence to be a danger to self or others when failing to comply with treatment.

However, at the time the order is considered, the law intended the patient to be competent to make decisions regarding treatment, but unlikely to comply with the treatment plans.

The two cases challenging Kendra’s Law further argued that the statute’s remedy for failure to comply with an assisted treatment order constituted an "unreasonable response," and amounted to summary arrest.

Cutrona rejected the argument, noting that "the failure of the patient to comply with the treatment plan, whose formulation the patient had the opportunity to participate in, leads to the heightened scrutiny of physicians for a 72-hour evaluation period." Cutrona found that the 72-hour period was a reasonable response when balanced against the needs of the state to "care for citizens unable to care for themselves (parens patriae) and to protect the community (police powers) from the dangerous tendencies of some who are mentally ill."

The ruling in New York’s county courts is subject to appeal. However, as the first constitutional challenge of the statute, many mental health professionals hailed the ruling as a step in the right direction.

Kendra’s Law mirrors, in many respects, APA’s Resource Document on Mandatory Outpatient Treatment, published earlier this year.

The resource document was an update of a 1987 task force report. APA’s Council on Psychiatry and Law felt strongly that the document should widen the scope of those who could benefit from treatment but would not fit traditional legal criteria for incapacitation.

Jeffrey Metzner, M.D., chair of the Council on Psychiatry and Law, told Psychiatric News that adding the preventive criteria to the document was an important update.

"Maintaining the preventive criteria [while deleting the incapacity determination requirements]," Metzner said, "was a reflection of a number of factors that included the increasing prevalence of such criteria nationwide in various state laws."

These kinds of changes in the criteria for imposing mandatory outpatient treatment have been strongly supported, said Metzner, not only by organizations like the National Alliance on Mental Illness, but also by various APA district branches. This has been largely due to the statutes’ effectiveness in increasing the provision of psychiatric care to the severely mentally ill.

"A major change from the 1987 task force report," Metzner told Psychiatric News, "is the linking of the lack of treatment compliance with mental illness in contrast to linking it with the incapacity to make an informed-consent decision."

Renee Binder, M.D., agreed. Binder, as chair of the Council on Psychiatry and Law during the development of the resource document, was a coauthor of the document.

"This update reflects the thinking that a finding of ‘incompetence’ is not necessary," Binder told Psychiatric News. "What is necessary is that the patient has a history of noncompliance that leads to deterioration and/or dangerousness and that the person will not comply unless court ordered."

These are the very criteria in Kendra’s Law challenged in the cases ruled upon by Justice Cutrona.

"The ruling," Metzner said, "is a validation of the concepts contained in the resource document. Its main significance is its recognition of the importance and potential benefits of outpatient commitment for a select clinical population."

[Urcuyo v. James D., 9274/00, and Trachtenberg v. Jonathon S., 14103/00, Supreme Court of New York, County of Kings; Special Part 77A]