APA's stand will be represented to the U.S. Supreme Court when the justices hear arguments on the constitutionality of a Kansas law that establishes a new category of commitment for sexual offenders. The Kansas Sexually Violent Predator Act was crafted to ensure that the state has the power to confine certain violent sexual offenders after they complete their prison sentences.

Acting on a request from Richard Ciccone, M.D., chair of the APA Council on Judicial Action, the Board of Trustees at its September meeting ratified an executive action taken in July by the president, speaker, and medical director that authorized APA to prepare the amicus brief in this precedent-setting case, Kansas v. Hendricks.

While this is the first case on this issue to reach the high court, similar commitment laws have been passed by legislatures in New Jersey, Washington, and Wisconsin and are being considered in other states as well. All set up a novel commitment concept for involuntary confinement of convicted sexual offenders who do not meet criteria for any DSM diagnosis that would qualify them for civil commitment procedures intended for the mentally ill.

On appeal is the ruling by the Kansas Supreme Court that the law violates the U.S. Constitution's due process protections by providing "outside the criminal processes, the definite locking up of people who do not have a mental illness," which the U.S. Supreme Court found unconstitutional in the case of Foucha v. Louisiana.

Ciccone explained to the Board several issues on which the APA brief will focus, including that the Kansas law pays so little attention to the treatment needs of these offenders that the confinement has to be read as "predominantly criminal," even though the state is sending these people to state psychiatric hospitals. This brings up legal issues such as double jeopardy, since they have already served a prison term, and denial of due process.

APA also intends to emphasize that the Kansas law "threatens basic rights that define our society as a free society," Ciccone pointed out. "The use of police powers and the assertion of prevention as a basis for confinement are highly suspect."

APA will argue as well that there is no legal basis for indefinitely and involuntarily confining a mentally competent individual outside the criminal justice system on the basis of "a psychiatrically invalid classification category," he noted. The Kansas law circumvents the need for a psychiatric diagnosis by creating a new category called "mental abnormality," which it applies to felons convicted of some sex crimes.

In the case at issue, Leroy Hendricks, a 60-year-old convicted child molester, was committed under the Kansas law to Larned State Hospital after serving 10 years in prison for his pedophilic activities. Though confined at a psychiatric hospital, the state had failed to hire "professionals specifically dedicated to a treatment program for sexually violent predators," according to the Kansas court, signaling that the state's intent toward Hendricks was not treatment or amelioration of his problem but a continuation of his criminal confinement.

Ciccone also updated the Board on the status of the Medigap insurance lawsuit that has been filed in Ohio and for which APA and the Ohio Psychiatric Association have provided financial support. The class-action suit is attempting to recover the amount of benefit underpayments for outpatient mental health services paid to Medigap policyholders in Ohio. Late last year several more Medigap insurers were added as defendants, bringing the total to 11, but the discovery phase of the suit has been temporarily suspended "pending the issuance of a protective order that will provide confidentiality for patients and medical records," Ciccone explained. That order should be issued soon, he noted, at which time the process will resume.

(Psychiatric News, October 18, 1996)