final report on the status of assisted outpatient treatment · final report on the status of...

New York StateGeorge E. Pataki, Governor

Office of Mental HealthSharon E. Carpinello, R.N., Ph.D., Commissioner

March 2005

Final Report on the Status of

AssistedOutpatientTreatment

Kendra’s Law: Final Report on the Status of Assisted Outpatient Treatment I

New York State Office of Mental Health March 2005

Kendra’s LawFinal Report on the Status of Assisted Outpatient Treatment

Table of ContentsIntroduction ..............................................................................................................1

Implementation of Assisted Outpatient Treatment................................................1

Eligibility Criteria for AOT........................................................................................2

Resources to Provide Court-Ordered Services ......................................................2

AOT Program Administration ..................................................................................3

State Oversight ..................................................................................................3

Impact of AOT on Local Mental Health Systems ..........................................4

How AOT Evolved Over the Past Five Years................................................5

Program Evaluation Findings ..................................................................................5

Summary of AOT Proceedings........................................................................7

Referrals/Investigations, Petitions, Court Orders and Service Enhancements ..............................................7

Length of Time in AOT............................................................................8

Reasons for Non-Renewal of Court Orders ..........................................8

Living Situation at Termination of AOT ................................................8

Characteristics of AOT Recipients ..................................................................8

Demographics ..........................................................................................9

Diagnosis ..................................................................................................9

Incidence of Hospitalization, Homelessness, Arrest and Incarceration ..........................................................................9

Outcomes for Recipients during the First Six Months of AOT ..........................10

Increased Participation in Case Management and Other Services ............11

Increased Engagement in Services and Adherence to Prescribed Medication................................................................................11

Improved Community and Social Functioning............................................12

Reduced Incidence of Harmful Behaviors ..................................................16

Longer Term Findings: Outcomes for AOT Recipients Beyond the Initial Six Months ..........................17

Reduced Incidence of Hospitalization, Homelessness, Arrest and Incarceration ................................................................................17

Reductions in Days Hospitalized for Psychiatric Care ................................17

Sustained Improvements in Overall Functioning and Reductions in Harmful Behaviors..........................................................19

Opinions of AOT Recipients Concerning Court-ordered Treatment ..................................................................20

Summary ..................................................................................................................21

Appendix 1: Laws of New York, 1999, Chapter 408 ................................................................23

Appendix 2: Kendra’s Law: Assisted Outpatient Treatment in New York ......................................................35

Appendix 3:In the Matter of K. L. ..............................................................................................55

II Kendra’s Law: Final Report on the Status of Assisted Outpatient Treatment


Introduction

ON AUGUST 9, 1999, GovernorGeorge Pataki signed Kendra’s Law(Chapter 408 of the Laws of 1999),

creating a statutory framework for court-ordered Assisted Outpatient Treatment(AOT) to ensure that individuals with mentalillness and a history of hospitalizations orviolence participate in community-basedservices appropriate to their needs.1

Kendra’s Law was named in memory ofKendra Webdale, a young woman who diedin January, 1999 after being pushed in frontof a New York City subway train by AndrewGoldstein, a man with a history of mental ill-ness and hospitalizations. The law becameeffective in November of 1999.

Since that time, the New York State Office ofMental Health (OMH) has been evaluating theimpact of Kendra’s Law on individuals receiv-

ing court-ordered services. In January, 2003OMH issued an Interim Report required byKendra’s Law, which reviewed the implemen-tation and status of AOT and presented find-ings from OMH’s evaluation of the program.2

This Final Report on the status of AOT in NewYork State is also statutorily required andupdates the Interim Report.

Implementation of Assisted Outpatient TreatmentKendra’s Law established new mechanisms foridentifying individuals who, in view of theirtreatment history and circumstances, are likelyto have difficulty living safely in the communi-ty without close monitoring and mandatoryparticipation in treatment. It also establishedmechanisms for ensuring that local mentalhealth systems give these individuals priorityaccess to case management and other servicesnecessary to ensure their safety and successfulcommunity living.

Kendra’s Law: Final Report on the Status of Assisted Outpatient Treatment 1


Notes1 Appendix 1 contains a copy of Kendra’s Law. Appendix 2 contains an analysis of court decisions relating to Kendra’s Law. Appendix 3

contains the Matter of K.L., the Court of Appeals decision upholding the constitutionality of Kendra’s Law.

2 OMH’s Interim Report on Kendra’s Law is available on the OMH Web site at http://www.omh.state.ny.us/ omhweb/Kendra_web/interimreport/

The statute created a petition process, foundin Mental Hygiene Law section 9.60, designedto identify at-risk individuals using specificeligibility criteria, assess whether court-ordered outpatient treatment is required, andif so, develop and implement mandatorytreatment plans consisting of case manage-ment and other necessary services.

Kendra’s Law requires that each county inNew York State and New York City establisha local AOT program to implement thestatute’s requirements, and charges OMH withthe responsibility for monitoring and oversee-ing the implementation of AOT statewide.Implementation of Kendra’s Law and AOThas been a joint responsibility and collabora-tion between OMH and local mental healthauthorities.

Eligibility Criteria for AOTKendra’s Law contains the following summarydescription of the AOT target population:

“...mentally ill people who are capable ofliving in the community with the help offamily, friends and mental health profes-sionals, but who, without routine careand treatment, may relapse and becomeviolent or suicidal, or require hospital-ization.”

The statute further defines specific eligibilitycriteria, which are listed below.

An individual may be placed in AOT only if,after a hearing, the court finds that all of thefollowing have been met. The individual must:1. be eighteen years of age or older; and2. suffer from a mental illness; and3. be unlikely to survive safely in the

community without supervision, based

on a clinical determination; and4. have a history of non-adherence with treat-

ment that has:a. been a significant factor in his or her

being in a hospital, prison or jail at leasttwice within the last 36 months; or

b. resulted in one or more acts, attempts orthreats of serious violent behaviortoward self or others within the last 48months; and

5. be unlikely to voluntarily participate intreatment; and

6. be, in view of his or her treatment historyand current behavior, in need of AOT inorder to prevent a relapse or deteriorationwhich would be likely to result in:a. a substantial risk of physical harm to the

individual as manifested by threats of orattempts at suicide or serious bodilyharm or conduct demonstrating that theindividual is dangerous to himself or her-self; or

b. a substantial risk of physical harm toother persons as manifested by homici-dal or other violent behavior by whichothers are placed in reasonable fear ofserious physical harm; and

7. be likely to benefit from AOT; and8. if the consumer has a health care proxy,

any directions in it will be taken intoaccount by the court in determining thewritten treatment plan. However, nothingprecludes a person with a health careproxy from being eligible for AOT.

Resources to Provide Court-Ordered ServicesThe Governor’s budget for Fiscal Year 2005-2006 provides more than $32 million for oper-ation of services in support of Kendra’s Law.This appropriation continues State support of

2 Kendra’s Law: Final Report on the Status of Assisted Outpatient Treatment


case management and other services aimed atkeeping recipients in a treatment program,including psychiatric medication as required.Since Kendra’s Law went into effect, GovernorPataki has also acted to expand access to casemanagement and other key community-basedmental health services that would be neededby individuals receiving court-ordered treat-ment, as well as many other individuals withsevere mental illness who have less intensive,but still substantial, service needs. TheGovernor’s budget for Fiscal Year 2005-2006also provides more than $125 million in ongo-ing funding for such services. This “EnhancedCommunity Services” funding has been usedto both improve and expand the capacity ofthe existing community-based mental healthsystem and to strengthen the cohesiveness andcoordination of that system. More specifically,Enhanced Community Services were designedto steer the New York State mental health sys-tem toward a more person-centered, recovery-oriented service delivery approach, and weretargeted for the following purposes:

◆ to expand case management, AssertiveCommunity Treatment (ACT), and housingservices to support community integration;

◆ to develop Single Points of Access (SPOA)to better manage service access and utiliza-tion; and

◆ to increase the availability of other servicesthat enhance community participation andimprove the engagement, quality of life, andsatisfaction level of service recipients.

AOT Program AdministrationFollowing the enactment of Kendra’s Law inAugust of 1999, OMH AOT program staffdeveloped and disseminated guidelines tocounties to assure the appropriate implemen-tation and operation of AOT statewide. InNovember of 1999, when the law became

effective, local governments began to opera-tionalize their AOT programs. OMH promul-gated AOT program standards in 2002 and in2004, providing further guidance to local AOTprograms.

In counties other than in New York City, thecounty Mental Health Directors operate, directand supervise their AOT programs, eitherdirectly or by designation to other local mentalhealth officials. In New York City, the ClinicalDirector for the New York City Department ofHealth and Mental Hygiene oversees imple-mentation of the City’s AOT program, which isadministered by designated teams of employ-ees of the New York City Health and HospitalsCorporation. These local AOT programs acceptand investigate reports of persons who may bein need of AOT, prepare and file petitions forAOT in local supreme or county courts, andprepare and/or approve proposed AOT treat-ment plans. In those instances where an AOTorder is granted, the Director of the local AOTprogram is required to provide or arrange forall categories of assisted outpatient treatmentincluded in the order.

Local AOT programs are responsible for theoversight and monitoring of service providers,including case management services and ACTteam services. It is the case management or ACTteam which directly monitors the recipient’slevel of compliance, as well as delivery of serv-ices by other providers pursuant to the order.The case manager or ACT Team routinely reportto the local AOT Program Director with respectto each recipient’s treatment status.

State Oversight

OMH is responsible for statewide oversightand monitoring of the AOT Program. TheOMH Statewide Director of AOT, appointed



by the Commissioner of OMH, is responsiblefor administering the program. Pursuant tosection 7.17(f) of the Mental Hygiene Law,the Commissioner of OMH has also appoint-ed OMH AOT Program Coordinators, whoreport to the Director of AOT, and who mon-itor and oversee operation of local AOT pro-grams across New York State. The AOTProgram Coordinators are located in each ofthe five OMH Field Offices in different geo-graphic regions throughout the State, andwork closely with the local AOT ProgramDirectors in the counties in their respectiveregion. The AOT Program Coordinators over-see and monitor the local AOT programs,provide information and support pertaining tothe petition process, and support the localAOT programs in their efforts to provide orarrange for court-ordered services.

As part of its oversight and monitoring efforts,OMH has developed and implemented a sys-tem of Verification of Service Delivery. Eachcalendar quarter, 5% of all active AOT casesacross the State are chosen randomly and adetailed review is conducted to verify that thelocal AOT Programs have fulfilled their serv-ice delivery obligations. For each casereviewed, OMH AOT Program Coordinators,or their staff, conduct verification visits to allservice providers for the AOT service recipi-ent, where they review medical charts andinterview employees of the providers. Insome instances, local AOT Program staffaccompany the AOT Program Coordinator onverification visits creating even more effectivecoordination between service providers, andState and local AOT program officials.

Impact of AOT on Local Mental Health Systems

Counties and stakeholder groups statewide

have reported that the implementation ofprocesses to provide AOT to individuals undercourt orders has resulted in beneficial structuralchanges to local mental health service deliverysystems. New mechanisms for identifying,investigating, and assessing individuals, devel-oped in order to fulfill the requirements ofAOT, have enhanced accountability in localmental health service systems. AOT implemen-tation has improved access to services for highneed individuals, treatment plan development,discharge planning, and coordination of serviceplanning. The implementation of AOT has alsosupported the development of more collabora-tive relationships between the mental healthand court systems.

Enhanced Accountability and ImprovedAccess to Services. AOT has been instrumen-tal in increasing accountability at all systemlevels regarding delivery of services to highneed individuals. Community awareness ofAOT has resulted in increased outreach toindividuals who had previously presentedengagement challenges to mental health serv-ice providers. Local mental health systemsbegan to identify the potential risk posed bynot responding to individuals in need, and asa result, those systems improved their abilityto respond more efficiently and effectively.

Improved Treatment Plan Development,Discharge Planning, and Coordination ofService Planning. Processes and structuresdeveloped for AOT have resulted in improve-ments to treatment plans that more appropriatelymatch the needs of individuals who have had dif-ficulties using mental health services in the past.AOT is designed to bring service providers andcounty administrators together in a collaborativeattempt to most efficiently deliver appropriateservices to these individuals. Case managers, ACTTeam staff, other clinical service providers, county



personnel and attorneys, recipient advocates, andfamily members are all among the participants inAOT related service planning.

Improved Collaboration between MentalHealth and Court Systems. Implementation of AOT involved the development of a peti-tion process with specific eligibility criteriadesigned to identify at-risk individuals,prompted novel legal issues, and requiredgreater interaction between the court systemand the community mental health servicesdelivery system. As AOT processes havematured, professionals from the two systemshave improved their working relationships,resulting in greater efficiencies, and ultimate-ly, the conservation of judicial, clinical, andadministrative resources.

In addition to these improvements, consulta-tions with officials of local AOT programshave identified the following improvementsin collaboration:

◆ There is now an organized process to pri-oritize and monitor individuals with thegreatest need;

◆ Local AOT program staff and local serviceproviders meet regularly regarding treat-ment of AOT recipients;

◆ AOT ensures greater access to services forindividuals whom providers have previous-ly been reluctant to serve;

◆ The AOT treatment plan serves as a com-prehensive planning tool to ensure that allproviders and the recipient are on the‘same page’;

◆ Positive treatment outcomes have beennoted;

◆ Decreases in the frequency and duration ofhospitalizations, incarcerations, and alcoholand substance abuse have also been noted;and

◆ There is now increased collaborationbetween inpatient and community-basedmental health providers.

How AOT Evolved Over the Past Five Years

Local directors of mental health services havereported progress in their implementation ofKendra’s Law. Initially, many felt challenged tomanage their obligations under the Law andwere unsure how to proceed. With guidanceand technical assistance from OMH, local gov-ernments have established systems to address theaspects of Kendra’s Law for which they maintainprimary responsibility.

Over time, many local mental health directorshave implemented structural changes within theirexisting systems to accommodate their new roleas Directors of AOT programs. These changesinclude the development of screening teams toevaluate and investigate referrals for AOT; theestablishment of mechanisms for easy collabora-tion between case management and ACT servicesand the local AOT program’s clinical personnel;and the development of service alternatives forindividuals who were not appropriate candidatesfor AOT, but for whom it was felt that somemore intensive intervention was required.

Figure 1 illustrates a hypothetical AOT case,from referral to investigation, assessment,service delivery, and monitoring.

Program Evaluation FindingsIn this section, we present findings fromOMH’s ongoing evaluation of AOT concern-ing: the outcomes of AOT judicial proceed-ings; how many individuals have receivedcourt-ordered AOT; how long individuals typ-ically remain under court-ordered treatment;the characteristics of AOT recipients; out-





Fred Smith is a 40-year-old man diagnosed with schizophrenia, who has experienced multiple psychiatric hospitalizations dating back 20 years, including two hospitalizations within the last 36 months. Fred has a criminal history, including several arrests for drug possession. In addition, when he is not in treatment, Fred has made verbal threats of violence against his family and other people in his immediate environment.

Fred's court-ordered AOT plan assigned an Assertive Community Treatment (ACT) team to provide care coordination, clinical treatment and rehabilitation services to Fred. It took the ACT team some time to engage Fred in services and to develop a trusting relationship with him.

Over the course of Fred's initial AOT court order and two renewal orders lasting a total of 18 months, the ACT team successfully worked with Fred on his goals.

Fred Smith's Experience with AOT (To prevent recognition, ‘Fred Smith’ is a composite of several actual AOT cases with similar histories and outcomes)

County AOT Coordinator• Collects and reviews information about

Fred's history of mental illness and treatment

• Determines that Fred may meet the eligibility criteria for AOT

• Refers Fred to the county-designated physician for a clinical assessment

• Monitors Fred's progress

County-designated Physician• Conducts a clinical assessment of Fred• Determines that it is clinically appropri-

ate to pursue an AOT court order for Fred

• Prepares a proposed AOT treatment plan to present to the court

Supreme (or County) Court Judge• Hears testimony from the physician

about the reasons for pursuing an AOT court order for Fred

• Issues an AOT court order that includes the treatment plan prepared by the physician

ACT Team• Delivers court-ordered treatment,

rehabilitation and support services to Fred• Reports on Fred's progress to the county and OMH

OMH AOT Program Coordinator• Monitors Fred's progress

Fred's Roommate• Calls the County AOT Coordinator to

request an investigation of whether Fred is eligible for AOT

Figure 1

comes for AOT recipients; and the opinionsof AOT recipients about court-ordered treat-ment and its impact. These findings derivefrom several sources:◆ OMH Central and Field Office staff record

basic information on each court order andthe status of each order in an electronictracking system. This system is used to gen-erate regular aggregate reports on the vol-ume of court orders throughout the state andthe number of individuals receiving AOT.

◆ OMH collects additional information con-cerning AOT recipients from their case man-agers via a paper-based survey data collec-tion process. Case managers complete astandardized assessment for each AOT recip-ient at the onset of the court order (base-line), at the end of the initial court order (sixmonth follow-up), and, if the court order isrenewed, every six months for the durationof the order. The assessments capture:demographic characteristics of AOT recipi-ents; their status in areas such as living situa-tion, services received, engagement in servic-es, and adherence to prescribed medication;incidence of significant events such as hospi-talization, homelessness, arrest, and incarcer-ation; functional impairment in the areas ofself-care, social skills, and task performance;and any incidence of harmful behaviors.These assessments are sent to OMH and theresults entered into an evaluation database.OMH uses the resulting data to assess out-comes for all AOT recipients as a group.Due to time lags inherent in paper-basedsurvey data collection and processing, andthe limited scope of the data collected onthe standardized assessments, OMH doesnot use use the evaluation database tomonitor the clinical status of individualrecipients.

◆ A third source of information for evaluatingAOT are data gathered directly from a sam-

ple of AOT recipients in New York City viaface-to-face interviews conducted byresearchers from the New York StatePsychiatric Institute/Columbia Universitywho are working in conjunction with OMHCentral Office staff.

Summary of AOT Proceedings

Referrals/Investigations, Petitions, Court Orders and Service Enhancements:Between November 1999 and December 31,2004, 10,078 individuals were referred to localAOT coordinators for investigation to deter-mine potential eligibility for an AOT courtorder. Referrals resulted in petitions filed forthe issuance of an AOT court order for 4,041individuals (40% of all individuals referred); ofthese, petitions were granted and court ordersissued for 3,766 individuals (93% of all indi-viduals with petitions filed). Investigations ledto service enhancements rather than courtorders for 2,863 individuals (28% of all investi-gations). Court orders and service enhance-ments have been issued in all regions of NewYork State, with 58% of all court orders andservice enhancements occurring in New YorkCity. Table 1 summarizes data on outcomes ofthe judicial procedures associated with AOT.



Table 1

Summary of AOT Judicial ProceedingsThrough December 31, 2004Referrals/Investigations..................10,078 individuals

Petitions Filed ....................................4,041 individuals

Petitions Granted.............................. 3,766 individuals

Percent of Individuals for whom Petitions were Filed and Granted ........................................93%

Length of Time in AOT: As noted in Table1, as of December 31, 2004, 3,766 individualshad received court ordered treatmentthrough AOT. Initial court orders for AOTrecipients are generally six months in dura-tion. Court orders, however, can be renewedand recipients may receive additional courtorders after previous orders expire. Aboutone third of AOT recipients spend sixmonths under court order. Court orders formost AOT recipients (64%) are renewed andso the majority of individuals remain undercourt order for more than six months (Table2). Figure 2 shows the total amount of timespent by recipients in AOT. The averagelength of time recipients remain under courtorder is 16 months.

Reasons for Non-Renewal of CourtOrders: OMH staff also collects informationon the reasons for non-renewal of court-orders. The most frequently cited reason isthat the individual has improved and is nolonger in need of court-ordered services(76%). The next most frequently cited reasonis that the individual is hospitalized at the endof the court order and a long stay in the hos-pital is anticipated (10%).

Living Situation at Termination of AOT: Atthe time of court order expiration most indi-viduals were living either in independent orsupervised community-based settings. Fiftytwo percent were living in independent set-tings, alone or with parents, spouses, otherrelatives, or other persons. Twenty-two per-cent were living in either assisted/supportedliving or supervised living settings. Twelvepercent were in psychiatric inpatient settings,while three percent were incarcerated at thetime their court order expired.

Characteristics of AOT RecipientsThe data presented below on the characteristicsof AOT recipients are for 2,745 individuals forwhom data were available in the OMH evalua-



O to 6 Months(36%)*

Over 6 monthsto 12 months

(19%)


(21%)


(17%)

Over 30months

(7%)

Time Recipients Spend in AOTNovember 1999 - December 2004

* Persons for whom an initial court order was not renewed.

Figure 2Table 2

AOT Court Order Renewal Rates Through December 31, 2004Court Orders Eligible for Renewal ....................................3,493 individuals*

Court Orders Renewed......................2,236 individuals

% with Court Orders Renewed ................................................................64%

* This number excludes all initial court orders that, as ofDecember 31, 2004, were still in effect (and thus not yet eli-gible for renewal).

tion database at the time of this report’s prepara-tion. (The time frames associated with paper-based data collection are such that the numberof individuals represented in the evaluation data-base is less than the total number of individualswho have received AOT.)

Demographics. Table 3 displays data on theage, sex, race/ethnicity, marital status and liv-ing situation of AOT recipients.

On average, persons in AOT are 371/2 years ofage and two-thirds (66%) are male. Most areunmarried and are living in independent set-tings in the community. The racial and ethniccomposition of the population receivingcourt-ordered treatment is diverse: 42% ofAOT recipients are Black, 34% are White and21% are Hispanic.

Diagnoses. Most individuals (71%) receiving anAOT court order have a diagnosis of schizo-phrenia. Thirteen percent have a bipolar disor-der diagnosis. More than half (52%) of AOTindividuals are reported as having a co-occur-ring mental illness and substance abuse condi-tion with mental illness as a primary diagnosis.

Incidence of Hospitalization, Homelessness,Arrest and Incarceration. Table 4 summarizesthe incidence of hospitalizations, homelessness,arrest and incarceration for persons in AOT priorto court-ordered treatment. In the three yearsprior to the court order, 97% of individuals hadat least one psychiatric hospitalization. On aver-age, these individuals had been hospitalizedapproximately three times during that periodwith some individuals having had as many as 13hospitalizations. Nineteen percent of individualshad experienced at least one episode of home-lessness in the three years preceding their courtorder. Thirty percent were arrested at least onetime in the three years prior to AOT. These indi-



Table 3

Characteristics of AOT Recipients

All AOT Recipients

AgeMean Number of Years ..............................37.5 Years

GenderMale........................................................................66%

Female ....................................................................34%

Race/Ethnicity*Black (non-Hispanic) ..............................................42%

White (non-Hispanic) ............................................34%

Hispanic..................................................................21%

Asian ........................................................................2%

Other ........................................................................1%

Marital StatusSingle, never married ............................................75%

Divorced/Widowed................................................17%

Married/Cohabitating w/significant other or domestic partner........................................8%

Current Living SituationLiving alone ............................................................13%

Living with others ..................................................38%

Supervised Living..................................................37%

Other ......................................................................12%

Diagnosis of Schizophrenia or Psychotic Disorder ......................................71%

Coexisting Alcohol and/or Substance Abuse Disorder ..............................52%

* These proportions are similar to those observed for all adultsreceiving intensive case management and AssertiveCommunity Treatment in urban areas.

viduals had as many as ten arrests during thattime. Twenty-three percent were incarcerated atleast once in the three years prior to their courtorder. Some individuals had as many as tenincarcerations in those three years.

When compared with a similar population ofmental health service recipients,3 AOT recipi-ents were twice as likely to have had a previ-ous episode of homelessness and 50% morelikely to have had contact with the criminal jus-tice system prior to their court order. In addi-tion, AOT recipients were 58% more likely tohave a co-occurring substance abuse problem.

Outcomes for Recipients duringthe First Six Months of AOTInitial court orders for AOT recipients areusually six months long. The six month mile-stone is critical because it is at this juncturethat decisions are made regarding renewal ofthe court order. Outcome findings presentedin the next section focus on change betweenthe onset of the court order and the status ofrecipients after six months. The results pre-sented below are for AOT recipients forwhom both baseline (onset of court order)and six-month follow-up assessments wereavailable in the OMH evaluation database atthe time of this report’s preparation.

AOT was designed to ensure supervision andtreatment for individuals who, without suchsupervision and treatment, would likely beunable to take responsibility for their owncare and would be unable to live successfullyin the community. For persons in AOT, thegoals are to increase access to the highestintensity services and to better engage themin those services. An additional goal is toreduce the incidence of behaviors harmful tothemselves or others. Participation in AOT



Table 4

Incidence of Hospitalization,Homelessness, Arrest and IncarcerationThree Years Prior to Issuance of Court-Order

Psychiatric HospitalizationsMean number in last 36 months ..........................3.08

Percent hospitalized (at least one episode) ........97%

Number of admissions (range) ............................0-13

Homeless EpisodesMean number in last 36 months ..........................0.27

Percent homeless (at least one episode) ............19%

Number of episodes (range) ..................................0-6

ArrestsMean number in last 36 months ..........................0.52

Percent arrested (at least one episode) ..............30%

Number of arrests (range) ....................................0-10

IncarcerationsMean number in last 36 months ..........................0.35

Percent incarcerated (at least one episode) ........23%

Number of incarcerations (range) ........................0-10

Notes3 OMH derives its estimates of the number of people served annually by the public mental health system from its Patient Characteristics

Survey (PCS). The PCS, which is administered every other year, gathers information about the demographic and clinical characteristics ofpersons receiving mental health services in programs operated, funded, or certified by OMH during a one-week period. The data presentedin this section are derived from the 2003 PCS, which is the most recent available.

should result in improved adherence to pre-scribed medication and decreased hospitaliza-tion, homelessness, arrests, and incarceration.In addition, AOT recipients should benefitthrough improved functioning in importantcommunity and personal activities.

Increased Participation in CaseManagement and Other Services

Table 5 compares participation in services byAOT recipients prior to and subsequent tothe initial court order. For all categories ofservice, a greater percentage of individualsare participating in the service while undercourt order than were receiving it prior to thecourt order. A dramatic example is in the areaof case management. As prescribed by thelegislation, all individuals receiving a courtorder are enrolled in case management.However, prior to AOT, only 53% of these

individuals were receiving this service.

In addition, the percentage of AOT recipientswho are receiving substance abuse servicesincreased by 67% as a result of their court-ordered treatment plan, increasing from 24%to 40%. Similarly, the percentage of personsin AOT who receive housing services as aresult of their court-ordered treatment planalso increased from 19% to 31%. Substantialincreases are also seen for urine or bloodtesting used to assess adherence to medica-tion or substance abuse.

Increased Engagement in Services and Adherence to Prescribed Medication

Two important goals of AOT are increasedengagement, i.e., active and regular participa-tion in services; and increased adherence toprescribed medication, i.e., taking medications



Table 5

Services Received by AOT RecipientsParticipation Rates Prior to AOT and During AOT

Percentage of AOT RecipientsPercent

Service Prior to AOT At Six Months Increase

Case Management 53% 100% 89%

Medication Management 60% 88% 47%

Individual or Group Therapy 51% 75% 47%

Day Programs 15% 22% 47%

Substance Abuse Services 24% 40% 67%

Housing or Housing Support Services 19% 31% 63%

Urine or Blood Toxicology (adherence to medication) 18% 37% 106%

Urine or Blood Toxicology (substance abuse) 17% 35% 106%

necessary to manage psychiatric symptoms asdirected by the treating physician. To assessengagement, case managers were asked torate the engagement of persons in AOT usinga scale ranging from “not at all engaged inservices” to “independently and appropriatelyuses services.” Recipients were considered tohave “good engagement” if they received arating of either “good – able to partner andcan use resources independently” or “excel-lent – independently and appropriately usesservices.” Data collected since the onset ofAOT show the percent of individuals whoexhibit good engagement in services increasedsignificantly from 41% to 62% at six months.

To assess medication adherence, case man-agers were asked to rate adherence of per-sons in AOT using a scale ranging from “tak-ing medication exactly as prescribed” to“rarely or never taking medication as pre-scribed.” Recipients were considered to have“good adherence to medication” if they wererated as either “takes medication as pre-scribed most of the time” or “takes medica-tion as prescribed.” The resulting data showthat the percent of individuals with goodmedication adherence increased significantlyfrom 34% to 69% after six months. Figure 3displays the improvement in engagement inservices and adherence to medications aftersix months of AOT participation.

Improved Community and Social Functioning

The evaluation database also documentschanges in AOT recipients’ day-to-day func-tioning. Measures that are used for this assess-ment are the Global Assessment ofFunctioning (GAF) and three sets of items thatassess individuals’ abilities in specific function-al areas: self-care, social and community living

skills, and task performance. The GAF is acommonly used measure of overall function-ing. It includes social, occupational, academic,and other areas of personal performance andresults in an overall numerical rating scorewhich can range from 0 to 100. A score of 50or below denotes serious impairment in social,occupational or school functioning. At theonset of an AOT court order, 39% of individu-als had a GAF score below 50. After receivingservices under an AOT court order for sixmonths, the percentage of persons with a GAFscore below 50 dropped to 33%.

AOT recipients’ functioning in the area ofself-care and community living also improvedafter six months of program participation.Table 6 displays the change in these meas-ures. The table compares the percentage of



Changes in Service Engagementand Adherence to MedicationAt Onset of Court Order vs. Six Months

IndividualsExhibiting Good

Service Engagement

IndividualsExhibiting Good

Adherenceto Medication

0%

15%

30%

45%

60%

75%

41%

62%

34%

69%

At Onset of Court Order

At Six Months

Figure 3

persons in AOT who were reported as havingdifficulty at the onset of their court orderedtreatment with the percentage reported ashaving difficulty six months later. For allitems, there were fewer individuals rated ashaving difficulty, and in all measures thechange was statistically significant. Althoughchanges are relatively small in magnitude forany single measure, a consistent pattern ofoverall improvement (reduction in difficulties)is seen across all areas of self-care and com-munity functioning.

Among the items included on Table 6, somemeasures can be linked to the AOT pro-gram’s goals of increasing adherence to med-ication and increasing engagement in servic-es. In particular, the percent of AOT recipi-ents who had difficulty managing medicationdecreased from 36% to 27% between theonset of the court order and six months.Similarly, the percent of recipients who haddifficulty following through on health careadvice and making and keeping appoint-ments declined from 26% to 19% and 27% to20% respectively.



Table 6

Improvements in Self Care and Community Living

Percent of AOT Recipients with DifficultiesPercent

At Onset of ReductionAOT Court Order At Six Months in Difficulties

Access community services 23% 16% 30%

Prepare meals 17% 12% 29%

Take care of own possessions 14% 10% 29%

Maintain adequate personal hygiene 7% 5% 29%

Follow through on health care advice 26% 19% 27%

Make and keep appointments 27% 20% 26%

Manage medication 36% 27% 25%

Take care of own living space 16% 12% 25%

Maintain adequate diet 9% 7% 22%

Handle finances 29% 25% 14%

Avoid dangers 7% 6% 14%

Shop for food, etc. 16% 14% 13%

Access transportation 9% 8% 11%

Average Percent Reduction 23%

Tables 7 and 8 display the changes duringthe initial six months of AOT in the areas ofsocial, interpersonal and family functioningand task performance. On 15 of the 16 meas-ures for these areas, the reduction in difficul-ties experienced by AOT recipients betweenthe onset of the court order and at sixmonths was statistically significant. Forinstance, the percent of recipients who haddifficulty effectively handling conflict andmanaging assertiveness dropped from 50% to36% and 44% to 33% respectively. Similar tothe findings noted above for self care andcommunity living, an overall pattern ofreduced difficulties and therefore improvedfunctioning characterizes the findings con-cerning social, interpersonal and family func-tioning, and task performance.



Table 7

Improvements in Social, Interpersonal, and Family Functioning



Ask for help when needed 28% 20% 29%

Effectively handle conflict 50% 36% 28%

Manage assertiveness 44% 33% 25%

Engage in social/family activities 34% 26% 24%

Communicate clearly 13% 10% 23%

Respond to social contact 20% 16% 20%

Maintain support network 40% 33% 18%

Manage leisure time 28% 24% 14%




Table 8

Improvements in Task Performance



Understand and remember instructions 19% 14% 26%

Perform in coordination with or in proximity to others without being distracted by them 28% 21% 25%

Sustain an ordinary routine without special supervision 33% 25% 24%

Perform activities within a schedule, maintain regular attendance and be on time 33% 25% 24%

Maintain attention and concentration spans 25% 19% 24%

Complete tasks without assistance 28% 22% 21%

Perform at a consistent pace without unreasonable rest periods 27% 22% 19%

Complete tasks without errors 27% 22% 19%


Reduced Incidence of Harmful Behaviors

Case managers also reported reductions inthe incidence of harmful behaviors for AOTrecipients at six months in AOT when com-pared with a comparable period of timeprior to AOT. Table 9 shows significantdeclines in the incidence of behaviors harm-ful to self, behaviors harmful to others, andharmful behaviors directed at property.Similarly, substantial declines are also seenin alcohol and substance abuse.

In summary, during the first six months ofcourt-ordered treatment, individuals in AOTshowed a significant decline in the incidenceof harmful behaviors.

The average percent decrease in harmfulbehaviors was 44%. In addition, over thesame amount of time AOT recipients showedsignificant improvement in the areas of selfcare and community living, task performance,and social, family and interpersonal function-ing. The average percent decrease in difficul-ties for all measures in these areas betweenthe onset of the court order and six monthswas 23%, 23% and 22% respectively. Theseimprovements are summarized in Figure 4.



Table 9

Reduced Incidence of Harmful Behaviors (Percent of Persons with One or More Events Reported in the Past 90 Days)

Percent of AOT Recipients with Harmful Behaviors

Percent Reduction

At Onset of in HarmfulAOT Court Order At Six Months Behaviors

Physically Harm Self/Made Suicide Attempt 9% 4% 55%

Abuse Alcohol 45% 23% 49%

Abuse Drugs 44% 23% 48%

Threaten Suicide 15% 8% 47%

Physically Harm Others 15% 8% 47%

Damage or Destroy Property 13% 7% 46%

Threaten Physical Harm 28% 16% 43%

Create Public Disturbances 24% 15% 38%

Verbally Assault Others 33% 21% 36%

Theft 7% 5% 29%


Longer Term Findings: Outcomes for AOT RecipientsBeyond the Initial Six MonthsAs noted earlier, the majority of recipientsremain in AOT longer than the initial courtorder period of six months, with the averagetotal length of time in AOT being 16 months.To assess outcomes for these individuals overtheir entire course of AOT, OMH continuesto collect evaluation data at six month inter-vals until AOT program termination. Thissection discusses AOT recipient outcomesachieved over the entire course of court-ordered treatment.

Reduced Incidence of Hospitalization,Homelessness, Arrest and Incarceration

During the entire time of participation in AOT,large decreases in the incidence of hospitaliza-tion, homelessness, arrest and incarcerationare seen for recipients when compared to pre-

AOT levels. Table 10 and Figure 5 summarizechange in the occurrence of these events.Three years prior to AOT, 23% of AOT recipi-ents had at least one incarceration. While inAOT, only 3% of recipients experienced anincarceration, a decrease of 87%. Over thesame time comparison, the incidence of arrest,psychiatric hospitalization, and homelessnessdeclined 83%, 77%, and 74%, respectively.

Reductions in Days Hospitalized for Psychiatric Care

OMH evaluation staff examined changes inthe total number of days individuals spenthospitalized before, during and after AOT. Onaverage, AOT recipients spent 50 days hospi-talized for psychiatric care during the sixmonths prior to court-ordered treatment.While receiving court-ordered treatment,recipients’ days hospitalized dropped to anaverage of 22 days per six month period, areduction of 56%. Days hospitalized continued



HarmfulBehaviors

Difficultiesin Self Care

Difficultiesin Task

Performance

Difficultiesin Social

Functioning

-50%

-40%

-30%

-20%

-10%

0%

Average Percent Reduction in Harmful Behaviors and DifficultiesAcross All Categories of Functioning

44%

22%23%23%

Figure 4

to decline even after the end of court-orderedtreatment: during the first six months after ter-mination of the court order, total days hospi-talized dropped to an average of 13 days, areduction of 74% from the pre-AOT total(Figure 6).



Table 10

Reduced Incidence of Significant Events for AOT RecipientsPercent

Prior to AOT During AOT Reduction

Incarceration 23% 3% 87%

Arrest 30% 5% 83%

Psychiatric Hospitalization 97% 22% 77%

Homelessness 19% 5% 74%

Incarceration Arrest Psychiatric Hospitalization Homelessness

-90%

-80%

-70%

-60%

-50%

-40%

-30%

-20%

-10%

0%

Reduced Incidence of Significant Events for AOT Recipients

87%

74%77%83%

Figure 5

Sustained Improvements in Overall Functioning and Reductions in Harmful Behaviors

On average, AOT recipients continued toexperience gains in social and communityfunctioning and reductions in harmful behav-iors throughout the duration of court-orderedtreatment (Figure 7). Gains made during theinitial six months of AOT were retained overtime, and on some measures additionalimprovement occurred after the first sixmonths. For instance, by the end of court-ordered treatment, 27% of AOT recipientsachieved a substantial improvement in overallfunctioning (defined as a 10 point or greatergain on the GAF). Figure 8 below comparesthe percent reduction in harmful behaviors forrecipients who leave AOT after six monthsversus recipients who remain in AOT longerthan six months. As the chart shows, bothgroups experience a nearly identical reductionduring the initial six month period followingthe court-order. The group remaining in AOT

experiences further reductions in harmfulbehavior during their remaining time undercourt-order; however, these changes are small-er in magnitude than the declines experiencedduring the initial six month period.



Six MonthsPre-AOT

During AOT Six MonthsPost-AOT

0

10

20

30

40

50

60

Aver

age

Days

Hos

pita

lized

50

22

13

Average Days HospitalizedSix Months Pre-AOT, During AOTand Six Months Post-AOT

Figure 6

Sustained Improvements in OverallFunctioning and Reductions inHarmful Behavior Over EntireTenure in AOT

Any HarmfulBehavior

Difficultyin any areaof Social

Functioning

Difficultyin any areaof Self Care

0%

10%

20%

30%

40%

50%

60%

70%

67%

38%

62%

43%46%

33%

Baseline

Over entire durationof AOT programparticipation

Figure 7

Opinions of AOT RecipientsConcerning Court-orderedTreatmentThis final set of findings are preliminaryresults from face-to-face interviews of AOTrecipients conducted by researchers at NewYork State Psychiatric Institute(NYSPI)/Columbia University as part of anongoing study comparing community out-comes for AOT recipients to those experi-enced by a comparison group of non-AOToutpatient service recipients. TheNYSPI/Columbia study is focused on a sam-ple of AOT recipients (n=76 to date) receiv-ing court-ordered treatment in New York City(Bronx and Queens). Through face-to-faceinterviews, researchers assess recipients’recent service histories, opinions about AOT,strength of the working alliance betweenrecipient and AOT case manager, and other

factors relevant to AOT including perceivedcoercion and stigma, perceived efficacy ofservices received through AOT, and quality oflife. Interviews are being repeated at three,six, nine and 12 month intervals to assesschanges over time. (OMH anticipates thatfinal results from this study will be availablein 2006.)

Concerning the experience of being court-ordered into treatment, about half of the AOTrecipients interviewed reported feeling angry(54%) or embarrassed (53%) by the experi-ence. However, 62% of AOT recipients alsoreported that, all things considered, beingcourt-ordered into treatment has been a goodthing for them. Concerning the emphasis inAOT on the importance of remainingengaged in needed services over time, themajority of AOT recipients interviewedreported that the pressures or things people



Percent Reduction in Harmful Behaviors Over Entire Course of AOTAt Entryinto AOT

After 6 Monthsof AOT

At Terminationof AOT

-60%

-50%

-40%

-30%

-20%

-10%

0%

Six month only AOT group(court order not renewed)

Longer termAOT group

44%

48%58%

Figure 8

have done to get them to stay in treatmenthelped them to get and stay well (81%), gaincontrol over their lives (75%), and made themmore likely to keep appointments and takemedication (90%). Concerning the workingalliance between AOT recipients and theircase managers, the majority reported thatthey were confident in their case manager’sability to help them (87%) and that they andtheir case managers agree on what is impor-tant for them to work on (88%).

SummaryThe Preamble to Kendra’s Law states that theintent of the act is to “amend the mentalhygiene law in relation to enhancing the super-vision and coordination of care of persons withmental illness in community-based settings byproviding assisted outpatient treatment.” ThisFinal Report illustrates the degree to which theState of New York has successfully fulfilled theintent of the legislation. Since Kendra’s Lawwas enacted in August 1999, the State hasresponded in ways which suggest that theintent of the legislation is being realized. Since1999, 10,078 individuals have been referred fora potential court order. As of December 31,2004, 3,766 individuals have received servicesunder an AOT order and an additional 2,863have received service enhancements as a resultof referral for a potential court order.

The local monitoring and oversight systemswhich are responsible for the administrationof the AOT program operate under standardsand guidelines set forth by OMH.Development and refinement of these stan-dards and guidelines are part of the State’scommitment to continual review of programperformance and quality improvement. Areaswhich have been the subject of standardizedState policies include the dissemination of

clinical risk information, specific policies onthe coordination of care, review of residentialplacements for AOT recipients, and uniformprocedures for the reporting of unexplainedprogram and residential absences. BecauseState and local governments continually moni-tor the AOT program, management strategiesto promote quality are ongoing.

Programmatic improvements are, however,only part of this AOT Final Report. It is thepeople who have used the program success-fully who matter most when summarizing theresults of this legislation. People in AOT havebeen able to improve their involvement inthe service system as a result of their partici-pation in the program, and by doing so, theyhave improved their lives. There has been an89% increase in use of case managementservices among AOT recipients, and substan-tial increases in utilizing both substance abuseand housing support services. There havealso been significant improvements reportedin self care and community functioning and a44% decline in the incidence of harmfulbehaviors (e.g., suicide threats, self harm, andharm to others).

For the people who have benefited from par-ticipation in services mandated under an AOTorder, these positive outcomes are more thanstatistics; they are tangible evidence that thesystem of care has been responsive to theirneeds. These are individuals who, withoutKendra’s Law, had limited experience of suc-cess in using mental health services. Over athree year period prior to their AOT order,almost all (97%) had been hospitalized (withan average of three hospitalizations per recip-ient), and many experienced homelessness,arrest, and incarceration. During participationin the AOT program, rates for hospitaliza-tions, homelessness, arrests, and incarcera-





tions have declined significantly, and programparticipants have experienced a lessening ofthe stress associated with these events.

This Final Report on the AOT Programdemonstrates that program participants areable to make gains in their recovery processand maintain them over the duration of theirAOT participation and beyond. All AOT

recipients receive benefits from case manage-ment or ACT services, and from the local sys-tems of monitoring and oversight which havebeen created in response to the legislation.OMH recommends that Kendra’s Law beextended permanently so these benefits cancontinue to be provided to those NewYorkers who require the support afforded tothem through an AOT order.



AN ACT to amend the mental hygienelaw, in relation to enhancing the supervisionand coordination of care of persons withmental illness in community-based settings byproviding assisted outpatient treatment and toamend chapter 560 of the laws of 1994amending the judiciary law and the mentalhygiene law relating to establishing a pilotprogram of involuntary outpatient treatment,in relation to the effectiveness of such chapterand providing for the repeal of such provisionon the expiration thereof

The People of the State of New York, rep-resented in Senate and Assembly, do enact asfollows:

Section 1. This act shall be known andmay be cited as “Kendra’s Law”.

§ § 2. Legislative findings. The legislaturefinds that there are mentally ill persons whoare capable of living in the community withthe help of family, friends and mental healthprofessionals, but who, without routine careand treatment, may relapse and become vio-lent or suicidal, or require hospitalization. Thelegislature further finds that there are mental-ly ill persons who can function well and safe-ly in the community with supervision andtreatment, but who without such assistance,will relapse and require long periods of hos-pitalization. The legislature further finds thatsome mentally ill persons, because of their ill-ness, have great difficulty taking responsibili-ty for their own care, and often reject the out-patient treatment offered to them on a volun-

tary basis. Family members and caregiversoften must stand by helplessly and watch theirloved ones and patients decompensate.Effective mechanisms for accomplishing theseends include: the establishment of assistedoutpatient treatment as a mode of treatment;improved coordination of care for mentally illpersons living in the community; the expan-sion of the use of conditional release in psy-chiatric hospitals; and the improved dissemi-nation of information between and amongmental health providers and general hospitalemergency rooms. The legislature furtherfinds that if such court-ordered treatment is toachieve its goals, it must be linked to a systemof comprehensive care, in which state andlocal authorities work together to ensure thatoutpatients receive case management andhave access to treatment services. The legisla-ture therefore finds that assisted outpatienttreatment as provided in this act is compas-sionate, not punitive, will restore patients’ dig-nity, and will enable mentally ill persons tolead more productive and satisfying lives. Thelegislature further finds that many mentally illpersons are more likely to enjoy recoveryfrom non-dangerous, temporary episodes ofmental illness when they are engaged in plan-ning the nature of the medications, programsor treatments for such episodes with assis-tance and support from family, friends andmental health professionals. A health careproxy executed pursuant to article 29-C of thepublic health law provides mentally ill per-sons with a means to accept individual

Appendix 1

Laws of New York, 1999

Chapter 408

Explanation: Matter that is underscored (example) is new; matter in brackets and struck through([example]) is old law to be omitted

responsibility for their own continuing mentalhealth care by providing advance directivesconcerning their wishes as to medications,programs or treatments that they feel areappropriate when they are temporarily unableto make mental health care decisions. The leg-islature therefore finds that the voluntary useof such proxies should be encouraged so asto minimize the need for involuntary mentalhealth treatment.

§ § 3. Section 7.17 of the mental hygienelaw is amended by adding a new subdivision(f) to read as follows:

(f) (1) The commissioner shall appoint pro-gram coordinators of assisted outpatienttreatment, who shall be responsible for theoversight and monitoring of assisted outpa-tient treatment programs established pur-suant to section 9.60 of this chapter.Directors of community services of local gov-ernmental units shall work in conjunctionwith such program coordinators to coordi-nate the implementation of assisted outpa-tient treatment programs.

(2) The oversight and monitoring role of theprogram coordinator of the assisted outpa-tient treatment program shall include each ofthe following:

(i) that each assisted outpatient receives thetreatment provided for in the court orderissued pursuant to section 9.60 of this chapter;

(ii) that existing services located in the assist-ed outpatient’s community are utilized when-ever practicable;

(iii) that a case manager or assertive commu-nity treatment team is designated for eachassisted outpatient;

(iv) that a mechanism exists for such casemanager, or assertive community treatmentteam, to regularly report the assisted outpa-tient’s compliance, or lack of compliancewith treatment, to the director of the assistedoutpatient treatment program; and

(v) that assisted outpatient treatment servicesare delivered in a timely manner.

(3) The commissioner shall develop stan-dards designed to ensure that case managersor assertive community treatment teams haveappropriate training and have clinically man-ageable caseloads designed to provide effec-tive case management or other care coordi-nation services for persons subject to a courtorder under section 9.60 of this chapter.

(4) Upon review or receiving notice thatservices are not being delivered in a timelymanner, the program coordinator shallrequire the director of such assisted outpa-tient treatment program to immediately com-mence corrective action and inform the pro-gram coordinator of such corrective action.Failure of a director to take corrective actionshall be reported by the program coordinatorto the commissioner of mental health, aswell as to the court which ordered the assist-ed outpatient treatment.

4. The opening paragraph of section 9.47of the mental hygiene law is designated sub-division (a) and a new subdivision (b) isadded to read as follows:

(b) All directors of community servicesshall be responsible for the filing of petitionsfor assisted outpatient treatment pursuant toparagraph (vi) of subdivision (e) of section9.60 of this article, for the receipt and investi-gation of reports of persons who are allegedto be in need of such treatment and for coor-dinating the delivery of court ordered serviceswith program coordinators, appointed by thecommissioner of mental health, pursuant tosubdivision (f) of section 7.17 of this chapter.In discharge of the duties imposed by subdi-vision (b) of section 9.60 of this article, direc-tors of community services may provide serv-ices directly, or may coordinate services withthe offices of the department or may contractwith any public or private provider to provideservices for such programs as may be neces-sary to carry out the duties imposed pursuantto this subdivision.

§ § 5. The mental hygiene law is amend-ed by adding a new section 9.48 to read asfollows:

§ § 9.48 Duties of directors of assisted out-patient treatment programs.





(a)(1) Directors of assisted outpatienttreatment programs established pursuant tosection 9.60 of this article shall provide a writ-ten report to the program coordinators,appointed by the commissioner of mentalhealth pursuant to subdivision (f) of section7.17 of this chapter, within three days of theissuance of a court order. The report shalldemonstrate that mechanisms are in place toensure the delivery of services and medica-tions as required by the court order and shallinclude, but not be limited to the following:

(i) a copy of the court order; (ii) a copy of the written treatment plan; (iii) the identity of the case manager or

assertive community treatment team, includ-ing the name and contact data of the organi-zation which the case manager or assertivecommunity treatment team member repre-sents;

(iv) the identity of providers of services;and

(v) the date on which services have com-menced or will commence.

(2) The directors of assisted outpatienttreatment programs shall ensure the timelydelivery of services described in paragraphone of subdivision (a) of section 9.60 of thisarticle pursuant to any court order issuedunder such section. Directors of assisted out-patient treatment programs shall immediatelycommence corrective action upon receivingnotice from program coordinators, that servic-es are not being provided in a timely manner.Such directors shall inform the program coor-dinator of such corrective action.

(b) Directors of assisted outpatient treat-ment programs shall submit quarterly reportsto the program coordinators regarding theassisted outpatient treatment program operat-ed or administered by such director. Thereport shall include the following information:

(i) the names of individuals served by theprogram;

(ii) the percentage of petitions for assist-ed outpatient treatment that are granted bythe court;

(iii) any change in status of assisted outpa-tients, including but not limited to the numberof individuals who have failed to comply withcourt ordered assisted outpatient treatment;

(iv) a description of material changes inwritten treatment plans of assisted outpatients;

(v) any change in case managers; (vi) a description of the categories of serv-

ices which have been ordered by the court; (vii) living arrangements of individuals

served by the program including the number,if any, who are homeless;

(viii) any other information as required bythe commissioner of mental health; and

(ix) any recommendations to improve theprogram locally or statewide.

§ § 6. The mental hygiene law is amend-ed by adding a new section 9.60 to read asfollows:

9.60 Assisted outpatient treatment.(a) Definitions. For purposes of this sec-

tion, the following definitions shall apply: (1) “assisted outpatient treatment” shall

mean categories of outpatient services whichhave been ordered by the court pursuant tothis section. Such treatment shall include casemanagement services or assertive communitytreatment team services to provide care coor-dination, and may also include any of the fol-lowing categories of services: medication;periodic blood tests or urinalysis to determinecompliance with prescribed medications; indi-vidual or group therapy; day or partial dayprogramming activities; educational and voca-tional training or activities; alcohol or sub-stance abuse treatment and counseling andperiodic tests for the presence of alcohol orillegal drugs for persons with a history of alco-hol or substance abuse; supervision of livingarrangements; and any other services within alocal or unified services plan developed pur-suant to article forty-one of this chapter, pre-scribed to treat the person’s mental illness andto assist the person in living and functioningin the community, or to attempt to prevent arelapse or deterioration that may reasonablybe predicted to result in suicide or the needfor hospitalization.

(2) “director” shall mean the director of ahospital licensed or operated by the office ofmental health which operates, directs andsupervises an assisted outpatient treatmentprogram, or the director of community servic-es of a local governmental unit, as such termis defined in section 41.03 of this chapter,

which operates, directs and supervises anassisted outpatient treatment program.

(3) “director of community services” shallhave the same meaning as provided in articleforty-one of this chapter.

(4) “assisted outpatient treatment pro-gram” shall mean a system to arrange for andcoordinate the provision of assisted outpatienttreatment, to monitor treatment complianceby assisted outpatients, to evaluate the condi-tion or needs of assisted outpatients, to takeappropriate steps to address the needs of suchindividuals, and to ensure compliance withcourt orders.

(5) “assisted outpatient” or “patient” shallmean the person under a court order toreceive assisted outpatient treatment.

(6) “subject of the petition” or “subject”shall mean the person who is alleged in apetition, filed pursuant to the provisions ofthis section, to meet the criteria for assistedoutpatient treatment.

(7) “correctional facility” or “local correc-tional facility” shall have the same meaning asdefined in section two of the correction law.

(8) “health care proxy” and “health careagent” shall have the same meaning asdefined in article 29-C of the public healthlaw.

(9) “program coordinator” shall mean anindividual appointed by the commissioner ofmental health, pursuant to subdivision (f) of sec-tion 7.17 of this chapter, who is responsible forthe oversight and monitoring of assisted outpa-tient treatment programs.

(b) The director of a hospital licensed oroperated by the office of mental health mayoperate, direct and supervise an assisted out-patient treatment program as provided in thissection, upon approval by the commissionerof mental health. The director of communityservices of a local governmental unit shalloperate, direct and supervise an assisted out-patient treatment program as provided in thissection, upon approval by the commissionerof mental health. Directors of communityservices of local governmental units shall bepermitted to satisfy the provisions of this sub-division through the operation of joint assist-ed outpatient treatment programs. Nothing inthis subdivision shall be interpreted to pre-

clude the combination or coordination ofefforts between and among local governmen-tal units and hospitals in providing and coor-dinating assisted outpatient treatment.

(c) Criteria for assisted outpatient treat-ment. A patient may be ordered to obtainassisted outpatient treatment if the court findsthat:

(1) the patient is eighteen years of age orolder; and

(2) the patient is suffering from a mentalillness; and

(3) the patient is unlikely to survive safe-ly in the community without supervision,based on a clinical determination; and

(4) the patient has a history of lack ofcompliance with treatment for mental illnessthat has:

(i) at least twice within the last thirty-sixmonths been a significant factor in necessitat-ing hospitalization in a hospital, or receipt ofservices in a forensic or other mental healthunit of a correctional facility or a local correc-tional facility, not including any period duringwhich the person was hospitalized or incar-cerated immediately preceding the filing ofthe petition or;

(ii) resulted in one or more acts of seriousviolent behavior toward self or others orthreats of, or attempts at, serious physicalharm to self or others within the last forty-eight months, not including any period inwhich the person was hospitalized or incar-cerated immediately preceding the filing ofthe petition; and

(5) the patient is, as a result of his or hermental illness, unlikely to voluntarily partici-pate in the recommended treatment pursuantto the treatment plan; and

(6) in view of the patient’s treatment his-tory and current behavior, the patient is inneed of assisted outpatient treatment in orderto prevent a relapse or deterioration whichwould be likely to result in serious harm tothe patient or others as defined in section 9.01of this article; and

(7) it is likely that the patient will benefitfrom assisted outpatient treatment; and

(8) if the patient has executed a healthcare proxy as defined in article 29-C of thepublic health law, that any directions included





in such proxy shall be taken into account bythe court in determining the written treatmentplan.

(d) Nothing herein shall preclude a per-son with a health care proxy from being sub-ject to a petition pursuant to this chapter andconsistent with article 29-C of the publichealth law.

(e) Petition to the court. (1) A petition foran order authorizing assisted outpatient treat-ment may be filed in the supreme or countycourt in the county in which the subject of thepetition is present or reasonably believed tobe present. A petition to obtain an orderauthorizing assisted outpatient treatment maybe initiated only by the following persons:

(i) any person eighteen years of age orolder with whom the subject of the petitionresides; or

(ii) the parent, spouse, sibling eighteenyears of age or older, or child eighteen yearsof age or older of the subject of the petition;or

(iii) the director of a hospital in which thesubject of the petition is hospitalized; or

(iv) the director of any public or charita-ble organization, agency or home providingmental health services to the subject of thepetition in whose institution the subject of thepetition resides; or

(v) a qualified psychiatrist who is eithersupervising the treatment of or treating thesubject of the petition for a mental illness; or

(vi) the director of community services, orhis or her designee, or the social services offi-cial, as defined in the social services law, ofthe city or county in which the subject of thepetition is present or reasonably believed tobe present; or

(vii) a parole officer or probation officerassigned to supervise the subject of the peti-tion.

(2) The petition shall state: (i) each of the criteria for assisted out-

patient treatment as set forth in subdivision(c) of this section;

(ii) facts which support such petitioner’sbelief that the person who is the subject of thepetition meets each criterion, provided that thehearing on the petition need not be limited tothe stated facts; and

(iii) that the subject of the petition is pres-ent, or is reasonably believed to be present,within the county where such petition is filed.

(3) The petition shall be accompanied byan affirmation or affidavit of a physician, whoshall not be the petitioner, and shall stateeither that:

(i) such physician has personally exam-ined the person who is the subject of the peti-tion no more than ten days prior to the sub-mission of the petition, he or she recommendsassisted outpatient treatment for the subject ofthe petition, and he or she is willing and ableto testify at the hearing on the petition; or

(ii) no more than ten days prior to the fil-ing of the petition, such physician or his or herdesignee has made appropriate attempts to elic-it the cooperation of the subject of the petitionbut has not been successful in persuading thesubject to submit to an examination, that suchphysician has reason to suspect that the subjectof the petition meets the criteria for assisted out-patient treatment, and that such physician iswilling and able to examine the subject of thepetition and testify at the hearing on the peti-tion.

(f) Service. The petitioner shall cause writ-ten notice of the petition to be given to thesubject of the petition and a copy thereof shallbe given personally or by mail to the personslisted in section 9.29 of this article, the mentalhygiene legal service, the current health careagent appointed by the subject of the petition,if any such agent is known to the petitioner,the appropriate program coordinator, theappropriate director of community services, ifsuch director is not the petitioner.

(g) Right to counsel. The subject of thepetition shall have the right to be representedby the mental hygiene legal service, or othercounsel at the expense of the subject of thepetition, at all stages of a proceeding com-menced under this section.

(h) Hearing. (1) Upon receipt by the courtof the petition submitted pursuant to subdivi-sion (e) of this section, the court shall fix thedate for a hearing at a time not later than threedays from the date such petition is receivedby the court, excluding Saturdays, Sundaysand holidays. Adjournments shall be permit-ted only for good cause shown. In granting

adjournments, the court shall consider theneed for further examination by a physicianor the potential need to provide assisted out-patient treatment expeditiously. The courtshall cause the subject of the petition, anyother person receiving notice pursuant to sub-division (f) of this section, the petitioner, thephysician whose affirmation or affidavitaccompanied the petition, the appropriatedirector, and such other persons as the courtmay determine to be advised of such date.Upon such date, or upon such other date towhich the proceeding may be adjourned, thecourt shall hear testimony and, if it be deemedadvisable and the subject of the petition isavailable, examine the subject alleged to be inneed of assisted outpatient treatment in or outof court. If the subject of the petition does notappear at the hearing, and appropriateattempts to elicit the attendance of the subjecthave failed, the court may conduct the hear-ing in such subject’s absence. If the hearing isconducted without the subject of the petitionpresent, the court shall set forth the factualbasis for conducting the hearing without thepresence of the subject of the petition.

(2) The court shall not order assisted out-patient treatment unless an examining physi-cian, who has personally examined the sub-ject of the petition within the time periodcommencing ten days before the filing of thepetition, testifies in person at the hearing.

(3) If the subject of the petition hasrefused to be examined by a physician, thecourt may request the subject to consent to anexamination by a physician appointed by thecourt. If the subject of the petition does notconsent and the court finds reasonable causeto believe that the allegations in the petitionare true, the court may order peace officers,acting pursuant to their special duties, orpolice officers who are members of an author-ized police department or force, or of a sher-iff’s department to take the subject of the peti-tion into custody and transport him or her toa hospital for examination by a physician.Retention of the subject of the petition undersuch order shall not exceed twenty-fourhours. The examination of the subject of thepetition may be performed by the physicianwhose affirmation or affidavit accompanied

the petition pursuant to paragraph three ofsubdivision (e) of this section, if such physi-cian is privileged by such hospital or other-wise authorized by such hospital to do so. Ifsuch examination is performed by anotherphysician of such hospital, the examiningphysician shall be authorized to consult withthe physician whose affirmation or affidavitaccompanied the petition regarding the issuesof whether the allegations in the petition aretrue and whether the subject meets the crite-ria for assisted outpatient treatment.

(4) A physician who testifies pursuant toparagraph two of this subdivision shall state thefacts which support the allegation that the sub-ject meets each of the criteria for assisted out-patient treatment, and the treatment is the leastrestrictive alternative, the recommended assist-ed outpatient treatment, and the rationale forthe recommended assisted outpatient treat-ment. If the recommended assisted outpatienttreatment includes medication, such physician’stestimony shall describe the types or classes ofmedication which should be authorized, shalldescribe the beneficial and detrimental physi-cal and mental effects of such medication, andshall recommend whether such medicationshould be self-administered or administered byauthorized personnel.

(5) The subject of the petition shall beafforded an opportunity to present evidence,to call witnesses on behalf of the subject, andto cross-examine adverse witnesses.

(i) (1) Written treatment plan. The courtshall not order assisted outpatient treatmentunless an examining physician appointed bythe appropriate director develops and pro-vides to the court a proposed written treatmentplan. The written treatment plan shall includecase management services or assertive com-munity treatment teams to provide care coor-dination. The written treatment plan also shallinclude all categories of services, as set forth inparagraph one of subdivision (a) of this sec-tion, which such physician recommends thatthe subject of the petition should receive. If thewritten treatment plan includes medication, itshall state whether such medication should beself-administered or administered by author-ized personnel, and shall specify type anddosage range of medication most likely to pro-





vide maximum benefit for the subject. If thewritten treatment plan includes alcohol or sub-stance abuse counseling and treatment, suchplan may include a provision requiring rele-vant testing for either alcohol or illegal sub-stances provided the physician’s clinical basisfor recommending such plan provides suffi-cient facts for the court to find (i) that suchperson has a history of alcohol or substanceabuse that is clinically related to the mental ill-ness; and (ii) that such testing is necessary toprevent a relapse or deterioration whichwould be likely to result in serious harm to theperson or others. In developing such a plan,the physician shall provide the following per-sons with an opportunity to actively participatein the development of such plan: the subjectof the petition; the treating physician; andupon the request of the patient, an individualsignificant to the patient including any relative,close friend or individual otherwise concernedwith the welfare of the subject. If the petition-er is a director, such plan shall be provided tothe court no later than the date of the hearingon the petition.

(2) The court shall not order assisted out-patient treatment unless a physician testifies toexplain the written proposed treatment plan.Such testimony shall state the categories ofassisted outpatient treatment recommended,the rationale for each such category, factswhich establish that such treatment is the leastrestrictive alternative, and, if the recommend-ed assisted outpatient treatment includes med-ication, the types or classes of medication rec-ommended, the beneficial and detrimentalphysical and mental effects of such medica-tion, and whether such medication should beself-administered or administered by anauthorized professional. If the petitioner is adirector such testimony shall be given at thehearing on the petition.

(j) Disposition. (1) If after hearing all rel-evant evidence, the court finds that the subjectof the petition does not meet the criteria forassisted outpatient treatment, the court shalldismiss the petition.

(2) If after hearing all relevant evidence,the court finds by clear and convincing evi-dence that the subject of the petition meets thecriteria for assisted outpatient treatment, and

there is no appropriate and feasible less restric-tive alternative, the court shall be authorized toorder the subject to receive assisted outpatienttreatment for an initial period not to exceed sixmonths. In fashioning the order, the court shallspecifically make findings by clear and con-vincing evidence that the proposed treatmentis the least restrictive treatment appropriateand feasible for the subject. The order shallstate the categories of assisted outpatient treat-ment, as set forth in subdivision (a) of this sec-tion, which the subject is to receive, and thecourt may not order treatment that has notbeen recommended by the examining physi-cian and included in the written treatment planfor assisted outpatient treatment as required bysubdivision (i) of this section. (3) If after hear-ing all relevant evidence the court finds byclear and convincing evidence that the subjectof the petition meets the criteria for assistedoutpatient treatment, and the court has yet tobe provided with a written proposed treatmentplan and testimony pursuant to subdivision (i)of this section, the court shall order the direc-tor of community services to provide the courtwith such plan and testimony no later than thethird day, excluding Saturdays, Sundays andholidays, immediately following the date ofsuch order. Upon receiving such plan and tes-timony, the court may order assisted outpa-tient treatment as provided in paragraph twoof this subdivision.

(4) A court may order the patient to self-administer psychotropic drugs or accept theadministration of such drugs by authorizedpersonnel as part of an assisted outpatienttreatment program. Such order may specifythe type and dosage range of such psy-chotropic drugs and such order shall be effec-tive for the duration of such assisted outpa-tient treatment.

(5) If the petitioner is the director of ahospital that operates an assisted outpatienttreatment program, the court order shall directthe hospital director to provide or arrange forall categories of assisted outpatient treatmentfor the assisted outpatient throughout theperiod of the order. For all other persons, theorder shall require the director of communityservices of the appropriate local governmentalunit to provide or arrange for all categories of



assisted outpatient treatment for the assistedoutpatient throughout the period of the order.

(6) The director or his or her designeeshall apply to the court for approval beforeinstituting a proposed material change in theassisted outpatient treatment order unlesssuch change is contemplated in the order.Non-material changes may be instituted bythe assisted outpatient treatment programwithout court approval. For the purposes ofthis subdivision, a material change shall meanan addition or deletion of a category of assist-ed outpatient treatment from the order of thecourt, or any deviation without the patient’sconsent from the terms of an existing orderrelating to the administration of psychotropicdrugs. Any such application for approval shallbe served upon those persons required to beserved with notice of a petition for an orderauthorizing assisted outpatient treatment.

(k) Applications for additional periods oftreatment. If the director determines that thecondition of such patient requires furtherassisted outpatient treatment, the director shallapply prior to the expiration of the period ofassisted outpatient treatment ordered by thecourt for a second or subsequent orderauthorizing continued assisted outpatienttreatment for a period not to exceed one yearfrom the date of the order. The procedures forobtaining any order pursuant to this subdivi-sion shall be in accordance with the provi-sions of the foregoing subdivisions of this sec-tion, provided that the time period included insubparagraphs (i) and (ii) of paragraph four ofsubdivision (c) of this section shall not beapplicable in determining the appropriatenessof additional periods of assisted outpatienttreatment. Any court order requiring periodicblood tests or urinalysis for the presence ofalcohol or illegal drugs shall be subject toreview after six months by the physician whodeveloped the written treatment plan oranother physician designated by the director,and such physician shall be authorized to ter-minate such blood tests or urinalysis withoutfurther action by the court.

(l) Application for an order to stay, vacateor modify. In addition to any other right orremedy available by law with respect to theorder for assisted outpatient treatment, the

patient, mental hygiene legal service, or any-one acting on the patient’s behalf may applyon notice to the appropriate director and theoriginal petitioner, to the court to stay, vacateor modify the order.

(m) Appeals. Review of an order issuedpursuant to this section shall be had in likemanner as specified in section 9.35 of thisarticle.

(n) Failure to comply with assisted outpa-tient treatment. Where in the clinical judgmentof a physician, the patient has failed or hasrefused to comply with the treatment orderedby the court, and in the physician’s clinicaljudgment, efforts were made to solicit compli-ance, and, in the clinical judgment of suchphysician, such patient may be in need ofinvoluntary admission to a hospital pursuant tosection 9.27 of this article, or for whom imme-diate observation, care and treatment may benecessary pursuant to section 9.39 or 9.40 ofthis article, such physician may request thedirector, the director’s designee, or personsdesignated pursuant to section 9.37 of this arti-cle, to direct the removal of such patient to anappropriate hospital for an examination todetermine if such person has a mental illnessfor which hospitalization is necessary pursuantto section 9.27, 9.39 or 9.40 of this article.Furthermore, if such assisted outpatient refus-es to take medications as required by the courtorder, or he or she refuses to take, or fails ablood test, urinalysis, or alcohol or drug test asrequired by the court order, such physicianmay consider such refusal or failure whendetermining whether the assisted outpatient isin need of an examination to determinewhether he or she has a mental illness forwhich hospitalization is necessary. Upon therequest of such physician, the director, thedirector’s designee, or persons designated pur-suant to section 9.37 of this article, may directpeace officers, when acting pursuant to theirspecial duties, or police officers who are mem-bers of an authorized police department orforce or of a sheriff’s department to take intocustody and transport any such person to thehospital operating the assisted outpatient treat-ment program or to any hospital authorized bythe director of community services to receivesuch persons. Such law enforcement officials



shall carry out such directive. Upon therequest of such physician, the director, thedirector’s designee, or person designated pur-suant to section 9.37 of this article, an ambu-lance service, as defined by subdivision two ofsection three thousand one of the publichealth law, or an approved mobile crisis out-reach team as defined in section 9.58 of thisarticle shall be authorized to take into custodyand transport any such person to the hospitaloperating the assisted outpatient treatmentprogram, or to any other hospital authorizedby the director of community services toreceive such persons. Such person may beretained for observation, care and treatmentand further examination in the hospital for upto seventy-two hours to permit a physician todetermine whether such person has a mentalillness and is in need of involuntary care andtreatment in a hospital pursuant to the provi-sions of this article. Any continued involuntaryretention in such hospital beyond the initialseventy-two hour period shall be in accor-dance with the provisions of this article relat-ing to the involuntary admission and retentionof a person. If at any time during the seven-tytwo hour period the person is determinednot to meet the involuntary admission andretention provisions of this article, and doesnot agree to stay in the hospital as a voluntaryor informal patient, he or she must bereleased. Failure to comply with an order ofassisted outpatient treatment shall not begrounds for involuntary civil commitment or afinding of contempt of court.

(o) Effect of determination that a personis in need of assisted outpatient treatment.The determination by a court that a patient isin need of assisted outpatient treatment underthis section shall not be construed as ordeemed to be a determination that suchpatient is incapacitated pursuant to articleeighty-one of this chapter.

(p) False petition. A person making a falsestatement or providing false information orfalse testimony in a petition or hearing underthis section is subject to criminal prosecutionpursuant to article one hundred seventy-five orarticle two hundred ten of the penal law.

(q) Exception. Nothing in this sectionshall be construed to affect the ability of the

director of a hospital to receive, admit, orretain patients who otherwise meet the provi-sions of this article regarding receipt, retentionor admission.

(r) Educational materials. The office ofmental health, in consultation with the officeof court administration, shall prepare educa-tional and training materials on the use of thissection, which shall be made available to localgovernmental units as defined in article forty-one of this chapter, providers of services,judges, court personnel, law enforcement offi-cials and the general public.

§ § 7. Subdivision (h) of section 9.61 of themental hygiene law, as amended by chapter338 of the laws of 1999, is amended to read asfollows:

(h) Applications for additional periods oftreatment. If the director of such hospitaldetermines that the condition of such patientrequires further involuntary outpatient treat-ment, the director shall apply prior to the ear-lier of April first, two thousand or the expira-tion of the period of involuntary outpatienttreatment ordered by the court for an orderauthorizing continued involuntary outpatienttreatment for a period not to exceed one hun-dred eighty days from the date of the order.The procedures for obtaining any order pur-suant to this subdivision shall be in accor-dance with the provisions of the foregoingsubdivisions of this section. The period forfurther involuntary outpatient treatmentauthorized by any subsequent order underthis subdivision shall not exceed one hundredeighty days from the date of the order.[Provided, further] Notwithstanding any otherprovision of law, any order authorizing invol-untary outpatient treatment, issued pursuantto this section shall expire on [August tenth,nineteen hundred ninety-nine, unless other-wise provided by law] or before Septemberthirtieth, two thousand.

§ § 8. Section 6 of chapter 560 of the lawsof 1994, amending the judiciary law and themental hygiene law relating to establishing apilot program of involuntary outpatient treat-ment, as amended by chapter 338 of the lawsof 1999, is amended to read as follows:

§ § 6. This act shall take effect immediate-ly and shall expire [August 10, 1999]September 30, 2000 when upon such date theprovisions of this act shall be deemedrepealed.

§ § 9. Section 9.61 of the mental hygiene



law, as added by chapter 678 of the laws of1994, is renumbered section 9.63. 10.Paragraph 1 of subdivision (e) of section 29.15of the mental hygiene law, as amended bychapter 789 of the laws of 1985, is amendedto read as follows:

1. In the case of an involuntary patient onconditional release, the director may terminatethe conditional release and order the patient toreturn to the facility at any time during theperiod for which retention was authorized, if,in the director’s judgment, the patient needsin-patient care and treatment and the condi-tional release is no longer appropriate; provid-ed, however, that in any such case, the direc-tor shall cause written notice of such patient’sreturn to be given to the mental hygiene legalservice. [If, at any time prior to the expirationof thirty days from the date of return to thefacility, he or any relative or friend or the men-tal hygiene legal service gives notice in writingto the director of request for hearing on thequestion of the suitability of such patient’sreturn to the facility, a hearing shall be heldpursuant to the provisions of this chapter relat-ing to the involuntary admission of a person]The director shall cause the patient to beretained for observation, care and treatmentand further examination in a hospital for up toseventy-two hours if a physician on the staff ofthe hospital determines that such person mayhave a mental illness and may be in need ofinvoluntary care and treatment in a hospitalpursuant to the provisions of article nine ofthis chapter. Any continued retention in suchhospital beyond the initial seventy-two hourperiod shall be in accordance with the provi-sions of this chapter relating to the involuntaryadmission and retention of a person. If at anytime during the seventy-two hour period theperson is determined not to meet the involun-tary admission and retention provisions of thischapter, and does not agree to stay in the hos-pital as a voluntary or informal patient, he orshe must be released, either conditionally orunconditionally.

§ § 11. Section 29.19 of the mental hygienelaw, as amended by chapter 843 of the lawsof 1980, is amended to read as follows:

§ § 29.19 Powers and duties of peace offi-cers acting pursuant to their special duties andpolice officers to apprehend, restrain, andtransport persons to facilities.

A person who has been committed oradmitted to a department facility or a hospitallicensed or operated by the office of mental

health and who has been reported as escapedtherefrom or from lawful custody, or whoresists or evades lawful custody; and anypatient for whom the director of a hospitaloperated by the office of mental health, or thedirector’s designee, has terminated a condi-tional release and ordered such patient toreturn to such facility; and any patient forwhom a director of an assisted outpatienttreatment program, as defined in subdivision(a) of section 9.60 of this chapter, or the direc-tor’s designee, or anyone designated pursuantto section 9.37 of this chapter, has directed theremoval to a hospital pursuant to subdivision(n) of section 9.60 of this chapter, may beapprehended, restrained, transported to, andreturned to such school or hospital by anypeace officer, acting pursuant to his specialduties, or any police officer who is a memberof an authorized police department or force orof a sheriff’s department, and it shall be theduty of any such officer to assist any repre-sentative of a department or licensed facility,or an assisted outpatient treatment program,to take into custody any such person orpatient upon the request of such representa-tive, director or designee.

§ § 12. Subdivisions (b) and (d) of section33.13 of the mental hygiene law, as amendedby chapter 912 of the laws of 1984, areamended to read as follows:

(b) The commissioners may require thatstatistical information about patients or clientsbe reported to the offices. [Names of patientstreated at out-patient or non-residential facili-ties, at hospitals licensed by the office of men-tal health and at general hospitals shall not berequired as part of any such reports.]

(d) Nothing in this section shall preventthe electronic or other exchange of informa-tion concerning patients or clients, includingidentification, between and among (i) facilitiesor others providing services for such patientsor clients pursuant to an approved local orunified services plan, as defined in articleforty-one of this chapter, or pursuant to agree-ment with the department, and (ii) the depart-ment or any of its licensed or operated facili-ties. [Information] Furthermore, subject to theprior approval of the commissioner of mentalhealth, hospital emergency services licensedpursuant to article twenty-eight of the publichealth law shall be authorized to exchangeinformation concerning patients or clientselectronically or otherwise with other hospitalemergency services licensed pursuant to arti-



cle twenty-eight of the public health lawand/or hospitals licensed or operated by theoffice of mental health; provided that suchexchange of information is consistent withstandards, developed by the commissioner ofmental health, which are designed to ensureconfidentiality of such information.Additionally, information so exchanged shallbe kept confidential and any limitations onthe release of such information imposed onthe party giving the information shall apply tothe party receiving the information.

§ § 13. Subdivision (a) of section 41.13 ofthe mental hygiene law is amended by addingtwo new paragraphs 15 and 16 to read as fol-lows:

15. administer, supervise or operate anyassisted outpatient treatment program of a localgovernmental unit pursuant to section 9.60 ofthis chapter and provide that all necessary serv-ices are planned for and made available forindividuals committed under the program.

16. identify and plan for the provision ofcare coordination, emergency services, andother needed services for persons who areidentified as high-need patients, as such term isdefined by the commissioner of mental health.

§ § 14. Subdivision (c) of section 47.03 ofthe mental hygiene law, as added by chapter789 of the laws of 1985, is amended to read asfollows:

(c) To provide legal services and assis-tance to patients or residents and their familiesrelated to the admission, retention, and careand treatment of such persons, to providelegal services and assistance to subjects of apetition or patients subject to section 9.60 ofthis chapter, and to inform patients or resi-dents, their families and, in proper cases, oth-ers interested in the patients’ or residents’ wel-fare of the availability of other legal resourceswhich may be of assistance in matters notdirectly related to the admission, retention,and care and treatment of such patients or res-idents;

§ § 15. (a) Within amounts appropriatedtherefor, the commissioner of mental healthshall provide grants to each county and thecity of New York, which shall be used by eachsuch county or city, to provide medication,and other services necessary to prescribe andadminister medication to treat mental illnessduring the pendency of a medical assistanceeligibility determination. Such eligibility deter-mination shall be completed in a timely and

expeditious manner as required by applicableregulations of the commissioner of health.Counties or the city shall use such grants toprovide medications prescribed to treat men-tal illness for individuals for whom theprocess of applying for medical assistancebenefits has been commenced prior to orwithin one week of discharge or release andwho: (1) are discharged from a hospital, asdefined in section 1.03 of the mental hygienelaw, or (2) have received services in or from aforensic or similar mental health unit of a cor-rectional facility or local correctional facility asdefined in section two of the correction law.(b) Such grants to provide medications shallbe subject to the commissioner’s approval andsupervision of an efficient and effective plansubmitted by a county or the city of NewYork. Such plans shall include, but not be lim-ited to, the following: (i) the process by whichthe county or the city of New York willimprove the timely and expeditious filing ofmedical assistance applications and coordi-nate the filing of applications for other publicbenefits for which the population described insubdivision (a) of this section may be eligible;(ii) the process by which medications pre-scribed to treat mental illness for such indi-viduals will be available at or near the time ofrelease or discharge; (iii) a specific descriptionof the process by which such individuals willbe referred to a county or city provider, or aprovider which contracts with the county orcity, to provide medication at or near the timeof release or discharge; and (iv) the process toprovide information necessary for the NewYork state office of mental health to fileappropriate medical assistance claims.

(c) Further, upon application of a countyor the city of New York, and within theamounts appropriated therefor, the commis-sioner of mental health shall be authorized toprovide grants to such county or city to beused to assist the local governmental units, asdefined in section 41.03 of the mental hygienelaw, in the development of plans pursuant tosubdivision (b) of this section, or to be used atlocal correctional facilities to improve the coor-dination between the individuals defined insubdivision (a) of this section and the appro-priate county representative or other individualwho will provide the psychiatric medicationsavailable under this program as determined inthe plans approved in subdivision (b) of thissection, and to assist such individuals in apply-ing for medical assistance and other public



benefits. The commissioner of mental health ishereby authorized to promulgate and adoptrules and regulations necessary to implementthis section.

§ § 16. Report and evaluation. The com-missioner of mental health shall issue an inter-im report on or before January 1, 2003 and afinal report on or before March 1, 2005. Suchreports shall be submitted to the governor andthe chairpersons of the senate and assemblymental health committees, and shall includeinformation concerning the characteristics anddemographics of assisted outpatients; the inci-dence of homelessness, hospitalization andincarceration of patients before assisted out-patient treatment to the extent available, andinformation on such incidence during assistedoutpatient treatment; outcomes of judicial pro-ceedings, including the percentage of peti-tions for assisted outpatient treatment that aregranted by the court; referral outcomes,including the time frames for service delivery;reasons for closed cases; utilization of existingand new services; and recommendations forchanges in statute.

§ § 17. Separability clause. If any clause,sentence, paragraph, section or part of this actshall be adjudged by any court of competentjurisdiction to be invalid, such judgment shallnot affect, impair or invalidate the remainderthereof, but shall be confined in its operationto the clause, sentence, paragraph, section orpart thereof directly involved in the contro-versy in which such judgment shall have beenrendered.

§ § 18. This act shall take effect immedi-ately, provided that section fifteen of this actshall take effect April 1, 2000, provided, fur-ther, that subdivision (e) of section 9.60 of themental hygiene law as added by section six ofthis act shall be effective 90 days after this actshall become law; and that this act shall expireand be deemed repealed June 30, 2005; and,provided, further, that the amendments to sec-tion 9.61 of the mental hygiene law made bysection seven of this act shall not affect theexpiration of such section and shall bedeemed to expire therewith.



INTRODUCTIONOn January 3, 1999, an event occurredwhich galvanized the mental health commu-nity, and served as a catalyst for an effort toidentify and address the needs of the smallpopulation of persons who respond well totreatment when hospitalized, but who havetrouble maintaining their recovery once backin the community. On that date, AndrewGoldstein, a man with a history of mental ill-ness and hospitalizations, pushed KendraWebdale onto the subway tracks in a tunnelbeneath the streets of Manhattan. Ms.Webdale lost her life as a result. What fol-lowed was a bi-partisan effort, led byGovernor George Pataki, to create a resourcedelivery system for this population, who, inview of their treatment history and presentcircumstances, are likely to have difficultyliving safely in the community.1

On August 9, 1999, Governor Pataki signedKendra’s Law, creating a statutory frameworkfor court-ordered assisted outpatient treatment(“AOT”), to ensure that individuals with men-tal illness, and a history of hospitalizations orviolence, participate in community-based serv-ices appropriate to their needs.2 The lawbecame effective in November of 1999. Sincethat time, 4,245 court orders have been issuedfor AOT statewide, together with 2,559 renew-

al orders.3 The majority of orders andrenewals have been issued in New York City.

The statute creates a petition process, foundin Mental Hygiene Law (“M.H.L.”) section9.60, designed to identify those persons whomay not be able to survive safely in the com-munity without greater supervision and assis-tance than historically has been available. Adescription of many aspects of the petitionprocess follows, and is in turn followed by areview of some of the more important courtdecisions concerning Kendra’s Law.

FILING THE PETITIONKendra’s Law establishes a procedure forobtaining court orders for certain patients toreceive and accept outpatient treatment.4 Theprescribed treatment is set forth in a writtentreatment plan prepared by a physician whohas examined the individual.5 The procedureinvolves a hearing in which all the evidence,including testimony from the examiningphysician, and, if desired, from the personalleged to need treatment, is presented to thecourt.6 If the court determines that the indi-vidual meets the criteria for assisted outpa-tient treatment (“AOT”), an order is issued toeither the director of a hospital licensed or

Appendix 2

Kendra’s Law: Assisted Outpatient Treatment in New York Keith J. Brennan, Esq., Assistant CounselNew York State Office of Mental Health

This article is an updated version of an article published in 2002, reflecting subsequent legaldevelopments. The original publication can be found at: Brennan, K.J. (2002). Recent develop-ments under Kendra’s Law. New York State Bar Association Journal. Volume 7, No 2, 24-34.



operated by the Office of Mental Health(“OMH”), or a director of community serviceswho oversees the mental health program of alocality (i.e., the county or the City of NewYork mental health director). The initial orderis effective for up to six months7 and can beextended for successive periods of up to oneyear.8 Kendra’s Law also provides a proce-dure for the removal of a patient subject to acourt order to a hospital for evaluation andobservation, in cases where the patient failsto comply with the ordered treatment andposes a risk of harm.9

The process for issuance of AOT ordersbegins with the filing of a petition in thesupreme or county court where the personalleged to be mentally ill and in need ofAOT is present (or is believed to be pres-ent). The following may act as petitioners:

(i) any person eighteen years of age orolder with whom the subject of thepetition resides; or

(ii) the parent, spouse, sibling eighteenyears of age or older, or child eight-een years of age or older of the sub-ject of the petition; or

(iii) the director of a hospital in whichthe subject of the petition is hospital-ized; or

(iv)the director of any public or charita-ble organization, agency or homeproviding mental health services tothe subject of the petition in whoseinstitution the subject of the petitionresides; or

(v) a qualified psychiatrist who is eithersupervising the treatment of or treat-ing the subject of the petition for amental illness; or

(vi)the director of community services, orhis or her designee, or the social serv-ices official, as defined in the socialservices law, of the city or county inwhich the subject of the petition ispresent or reasonably believed to bepresent; or

(vii) a parole officer or probation officerassigned to supervise the subject ofthe petition. 10

The petition must include the sworn state-ment of a physician who has examined theperson within ten days of the filing of thepetition, attesting to the need for AOT.11 Inthe alternative, the affidavit may state that

unsuccessful attempts were made in the pastten days to obtain the consent of the personfor an examination, and that the physicianbelieves AOT is warranted. In the latter case,if the court finds reasonable cause to believethe allegations in the petition are true, thecourt may request that the patient submit toan examination by a physician appointed bythe court, and ultimately may order peaceofficers or police officers to take the personinto custody for transport to a hospital forexamination by a physician. Any such reten-tion shall not exceed twenty-four hours.12

The petitioner must establish by clear andconvincing evidence that the subject of thepetition meets all of the following criteria:1.) He or she is at least 18 years old; and2.) is suffering from a mental illness; and3.) is unlikely to survive safely in the com-

munity without supervision; and4.) has a history of lack of compliance with

treatment for mental illness that has:(a) at least twice within the last 36

months been a significant factor innecessitating hospitalization or receiptof services in a forensic or other men-tal health unit in a correctional facilityor local correctional facility (notincluding any period during whichthe person was hospitalized or incar-cerated immediately preceding the fil-ing of the petition), or

(b) resulted in one or more acts of seri-ous violent behavior toward self orothers, or threats of or attempts atserious physical harm to self or otherswithin the last 48 months (not includ-ing any period in which the personwas hospitalized or incarceratedimmediately preceding the filing ofthe petition); and

5.) is, as a result of his or her mental illness,unlikely to voluntarily participate in therecommended treatment pursuant to thetreatment plan; and

6.) in view of his or her treatment historyand current behavior, the person is inneed of assisted outpatient treatment inorder to prevent a relapse or deteriora-tion which would be likely to result inserious harm to self or others; and

7.) it is likely that the person will benefitfrom assisted outpatient treatment; and

8.) if the person has executed a health careproxy, any directions included in such



proxy shall be taken into account by thecourt in determining the written treat-ment plan.13

In addition, a court may not issue an AOTorder unless it finds that assisted outpatienttreatment is the least restrictive alternativeavailable for the person.14

Notice of the petition must be served on anumber of people or entities, including theperson, his or her nearest relative, the AOTProgram Coorinator, and the Mental HygieneLegal Service (“MHLS”), among others.15 Thecourt is required to set a hearing date that isno more than three days after receipt of thepetition, although adjournments can be grant-ed for good cause.16

If the court finds by clear and convincing evi-dence that the subject of the petition meetseach of the criteria and a written treatmentplan has been filed, the court may order thesubject to receive assisted outpatient treat-ment. The order must specifically state find-ings that the proposed treatment is the leastrestrictive treatment that is appropriate andfeasible, must include case management orAssertive Community Team services and muststate the other categories of treatmentrequired. The court may not order treatmentwhich is not recommended by the examiningphysician and included in the treatmentplan.17 Appeals of AOT orders are taken inthe same manner as specified in M.H.L. sec-tion 9.35 relating to retention orders.18

If in the clinical judgment of a physician theassisted outpatient has failed or refused tocomply with the treatment ordered by thecourt, efforts must be made to achieve com-pliance. If these efforts fail, and the patientmay be in need of involuntary admission toa hospital, the physician may request thedirector of community services, his designee,or other physician designated under section9.37 of the M.H.L. to arrange for the trans-port of the patient to a hospital. If requested,peace officers, police officers or members ofan approved mobile crisis outreach teammust take the patient into custody for trans-port to the hospital. An ambulance servicemay also be used to transport the patient.The patient may be held for up to 72 hoursfor care, observation and treatment and topermit a physician to determine whether

involuntary admission under the standardsset forth in Article 9 of the M.H.L. is warrant-ed.19 If, during the 72-hours a determinationis made that the patient does not meet thestandard for inpatient hospitalization, thenthe patient must be released immediately.

The legislation also provides for theexchange of clinical information pertainingto AOT patients. Kendra’s Law amendsM.H.L. section 33.13, the confidentiality pro-vision, to clarify that OMH licensed or oper-ated facilities may share confidential patientinformation, when such sharing is necessaryto facilitate AOT.20

LEGAL DEVELOPMENTSSince the legislation became effective, NewYork courts have addressed a number ofissues related to the statute, and have ren-dered decisions regarding the constitutionali-ty of the statute, as well as decisions constru-ing statutory provisions concerning the crite-ria for AOT orders, and the evidentiary stan-dard under the statute.

Constitutional ChallengesKendra’a Law was signed into law byGovernor George Pataki on August 9, 1999,and became effective on November 8, 1999.Even before the law was implemented, thereemerged a focused debate concerning theissue of whether the law achieved its goal ofcreating a mechanism to insure that individu-als who met the statutory criteria remainedtreatment compliant while in the community,in a way that was consistent with theConstitutional rights of those individuals.

On one side of the debate, proponents of thelaw recognized the numerous proceduralaspects of the law which were includedspecifically to meet constitutional standards,many of which were deliberately modeledafter other provisions of the Mental HygieneLaw, which themselves had survived priorjudicial scrutiny and had been found to beconstitutional. The supporters of the lawargued that any compulsion occasioned bythe law was justified by the law’s importantobjective of helping individuals with a history



of treatment non-compliance resulting in vio-lent acts and/or repeated hospitalization, tolive safely in the community.

On the other side of the debate, opponentsof the law primarily relied upon prior judicialdecisions which found that forcible medica-tion over objection required a finding ofincapacity. The opponents of the law readinto these decisions a much broader pro-scription of any measures which might influ-ence an individual’s decision to comply withtreatment, even when those measures fall farshort of forcible medication over objection.

This theoretical debate would not beresolved without judicial intervention andinevitably found its way into the courts.

In In re Urcuyo,21 the first court challenge tothe constitutionality of Kendra’s Law, theMental Hygiene Legal Service (“MHLS”)moved for dismissals on behalf of tworespondents to Kendra’s Law petitions inSupreme Court, Kings County. Respondentsargued that Kendra’s Law violated the dueprocess and equal protection guarantees ofthe New York State and the United StatesConstitutions because the statute did notrequire a judicial finding of incapacity priorto the issuance of an order requiring therespondent to comply with the AOT treat-ment plan. The court rejected all of respon-dents’ arguments, and held that the statutewas in each respect constitutional.

The challenge was based largely upon theCourt of Appeals decision in Rivers v.Katz.22 The Rivers court acknowledged thatall patients have a fundamental right todetermine the course of their own treatment,but also that there may be circumstanceswhere it is necessary to administer treatmentto a psychiatric inpatient over the patient’sobjections, pursuant to either the State’spolice power or parens patriae power. Riversestablished a procedural due process stan-dard for medication over objection, requiringa judicial finding that the patient lacks thecapacity to make competent decisions con-cerning treatment. This is a judicial determi-nation, not a clinical determination, and rec-ognizes that there is a cognizable deprivationof liberty resulting from a decision to forciblymedicate a person who has been involuntari-ly committed.

Respondents in Urcuyo urged the court toequate the infringement of a patient’s libertyinterest as a consequence of an AOT orderwith the Rivers situation, where a psychiatricinpatient is forcibly medicated against his orher will. Respondents pointed to the compul-sive nature of court orders, and reasonedthat the threat of removal for observation asa result of non-compliance is so akin to theforcible medication situation in Rivers, thatidentical due process safeguards are constitu-tionally required.23

The court answered by stating that AOTpatients are not involuntary inpatients, andtherefore are not even subject to medicationover objection. There is no threat of medica-tion over objection because there is noauthorization in the statute for such meas-ures, and that “[e]ven if a patient is eventual-ly retained in a hospital after the seventy-twohour evaluation period [pursuant to 9.60(n)],he or she still cannot be forcibly medicatedabsent a judicial determination of incapacityor under emergency circumstances.”24

With respect to respondents’ attempts todraw analogies between forcible administra-tion of medication over objection, and themore remote possibility of clinical interven-tion in the event of non-compliance, theresponse was equally succinct:

This court rejects respondents’ argu-ment that an assisted outpatient order,while not providing for the forcibleadministration of medication, unreason-ably violates the patient’s right to refusemedication by threatening arrest uponnon-compliance with the plan. . . . thecourt does not agree with respondents’argument that a failure to take medica-tion results in the summary arrest of thepatient. Rather, the patient’s failure tocomply with the treatment plan, whoseformulation the patient had the oppor-tunity to participate in, leads to theheightened scrutiny of physicians for a72-hour evaluation period, but onlyafter a physician has determined thatthe patient may be in need of involun-tary admission to a hospital.25

Ultimately, the 72-hour observation periodwas held to be “a reasonable response to apatient’s failure to comply with treatment



when it is balanced against the compellingState interests which are involved.”26

Furthermore, the removal and 72-hour obser-vation provisions of the statute were held tobe in accord with earlier judicial construc-tions of the dangerousness standard embod-ied in the M.H.L. provisions concerninginvoluntary commitment.

One such precedent was Project Release v.Provost,27 which held that M.H.L. provisionsauthorizing involuntary observation periodsof up to 72 hours satisfy constitutional dueprocess standards. Reference was also madeto prior decisions permitting clinicians, andcourts, to consider a patient’s history ofrelapse or deterioration in the community,when weighing the appropriateness of anexercise of the police power or the parenspatriae power. For example, Matter of Seltzerv. Hogue28 involved a civilly committedpatient whose behavior improved in the hos-pital, but who would not comply with treat-ment, and whose condition would deterio-rate in the community. The Hogue courtconsidered evidence of the patient’s behaviorin the community, and pattern of treatmentfailures, and ordered his continued retentionunder M.H.L. section 9.33. Relying onHogue, the Urcuyo court held that it wasappropriate to consider the patient’s behaviorin the community, and any history of treat-ment failures, when making a determinationregarding dangerousness in a proceedingpursuant to Kendra’s Law.29

Reviewing the specific criteria that must beshown by a petitioner, the high evidentiarystandard requiring that those criteria beshown by clear and convincing evidence,and the prior judicial acceptance of otherMental Hygiene Law provisions which areanalogous to the 72-hour observation provi-sion of Kendra’s Law, the court foundrespondents’ constitutional due process rightsare sufficiently protected.

Although the constitutional issues consideredby the court were sufficiently significant thatan appeal of the decision would appear tohave been a certainty, the particular facts ofthe case resulted in a withdrawal of the peti-tion prior to a final decision on the merits.Consequently the parties were deprived ofstanding to bring the court’s decision con-cerning the issue of the law’s constitutionali-

ty before the Appellate Division, and thusappellate review of the issue would have towait for a more suitable case.

It did not take long for such a case to arisefor in the wake of the decision in Matter ofUrcuyo, the Supreme Court, Queens County,was presented with another constitutionalchallenge to Kendra’s Law. In Matter ofK.L.,30 the MHLS moved for dismissal of apetition on behalf of respondent, arguingthat the statute was unconstitutional on twogrounds — that the statute unconstitutionallydeprived patients of the fundamental right todetermine their own course of treatment,and that the statutory provisions concerningremoval for observation following non-com-pliance with the AOT order are faciallyunconstitutional. The Attorney General ofthe State of New York, in his statutorycapacity under N.Y. Exec. Law s. 71 inter-vened to support the constitutionality of thestatute. In turn, an amici brief was submit-ted in support of the respondent’s constitu-tional challenge, representing a number ofadvocate groups.

The first challenge brought by the respon-dent in Matter of K.L. echoed the constitu-tional challenge in Matter of Urcuyo, andasked the court to equate AOT with thetype and degree of deprivation of libertyimplicated in Rivers, which involved theforcible medication of a psychiatric inpatientover the patient’s objection.31 Respondentargued that in those cases where the treat-ment plan included a medication compo-nent, the court could avoid finding thestatute unconstitutional by construing it torequire a judicial finding that the patientlacked the capacity to make reasoned deci-sions concerning his medical treatment.Respondent offered that the proceduralsafeguards developed in Rivers could beimported into the AOT procedure, and pre-serve the patient’s right to control hiscourse of treatment.

Respondent’s characterization of Kendra’sLaw orders as tantamount to medication overobjection was rejected, and the Rivers factsdistinguished from the AOT situation.Notably, Rivers reaffirmed the right of everyindividual to determine his or her owncourse of treatment, but also recognized that“this right is not absolute, and must perforce



yield to compelling state interests when thestate exercises its police power (as when itseeks to protect society), or its parens patriaepower (to provide care for its citizens whoare unable to care for themselves because ofmental illness).”32 The court then rejectedthe Rivers analogy:

However, there is a fundamental flawin respondent’s position in this regard.Under Kendra’s Law, the patient is notrequired to take any drugs, or submitto any treatment against his will. Tothe contrary, the patient is invited toparticipate in the formation of thetreatment plan. When released pur-suant to an assisted outpatient treat-ment order, no drugs will be forcedupon him if he fails to comply withthe treatment plan.33

After dismissing the Rivers analogy, the courtwent on to analyze whether any deprivationof a patient’s liberty interests occasioned bya Kendra’s Law order was the result of theconstitutional exercise of the State’s police orparens patriae powers. The court first notedthat for the state to exercise the policepower where an individual’s liberty interestmay be infringed, a compelling state interestmust be identified. The court found such acompelling state interest:

Certainly, the state has a compellinginterest in preventing emergencies andprotecting the public health. Thus theobjective of Kendra’s Law, the outpa-tient treatment of the mentally ill who,without treatment, “may relapse orbecome suicidal,” may be viewed as areasonable motive for the exercise ofthe state’s police power.34

The court noted that the statute requires thata history of non-compliance leading torepeated hospitalizations, or serious violentbehavior toward the individual himself orothers, and that a relapse in the individual’sillness would be likely to result in seriousharm to the patient or others, and concludedthat “[t]hese considerations are not trivial.”35

Ultimately, the court found that these consid-erations demonstrated the appropriateness ofthe state’s exercise of its parens patriae pow-ers as well.36

In light of exhaustive legislative findings, and“elaborate procedural safeguards to insurethe protection of the patient’s rights,”37 thecourt concluded:

Given that the purpose of Kendra’s Lawis to protect both the mentally disabledindividual and the greater interests ofsociety, the statute is narrowly tailoredto meet its objective. In view of the sig-nificant and compelling state interestsinvolved, the statute is not overlybroad, or in any way unrelated to, orexcessive in light of those interests.38

Respondent’s second constitutional challengewas based upon the contention that, in orderfor the removal provision (M.H.L. section9.60(n)) to pass constitutional muster, thepatient must be afforded notice and anopportunity to be heard prior to any removalfor observation. Or stated differently, “it isurged that only a court may order such con-finement or detention, rather than a physi-cian, as set forth in the statute.”39 This argu-ment was also rejected.

Contrary to respondent’s position that thestatute permits summary arrest without anydue process, for an AOT order to issue inthe first instance there must have been ajudicial finding, based on clear and convinc-ing evidence, that in the event of a failure tocomply with treatment, the patient will likelypresent a danger to himself or others. Inaddition to this prior judicial finding, failureto comply does not automatically result inthe immediate confinement of the patient. Infact, the court went to great lengths to articu-late the significant procedural requirementswhich must be met prior to any effort toremove the patient who has failed to complywith his treatment plan:

Before a physician may order [removal]of a patient to a hospital for examina-tion, the following must take place:1. The physician must be satisfied that

efforts were made to solicit thepatient’s compliance; and

2. In the clinical judgment of thephysician, the patient (a) “may be inneed of involuntary admission to ahospital pursuant to section 9.27 ofthe mental hygiene law;” or (b)“immediate observation, care and



treatment of the patient may be nec-essary pursuant to Mental HygieneLaw sections 9.39 or 9.40.” Then,

3. The physician may request “thedirector,” or certain other specificperson, to direct the removal of thepatient to an appropriate hospitalfor examination, pursuant to specif-ic standards.

4. The patient may be retained onlyfor a maximum of 72 hours.

5. If at any time during the 72-hourperiod the patient is found not tomeet the involuntary admission andretention provision of the MentalHygiene Law, he must be released.40

With reference to other provisions of theMental Hygiene Law which permit the invol-untary removal of a person to a hospital, andwhich have all been constitutionallyupheld,41 the court noted that the removalprovisions in Kendra’s Law contemplate evengreater procedural protections. For example,removal under Kendra’s Law requires a priorjudicial finding that removal may be appro-priate in the event of failure to comply.

Having had his constitutional challenge toKendra’s Law denied by the supreme courtin Queens County, and having had that courtalso grant the petition for assisted outpatienttreatment as to him, the Respondent inMatter of K.L appealed the decision to theAppellate Division, Second Department.Although the order for assisted outpatienttreatment had expired by the time the appealwas heard, the Second Department foundthat the issues raised justified invocation ofan exception to the mootness doctrine.42

The Appellate court also rejected argumentsby the Attorney General that Respondentlacked standing to challenge the removalprovisions of the law, because he had failedto allege that he had actually been removedpursuant to that provision in violation of hisconstitutional rights.43

In an opinion notable for its succinctness, theSecond Department also rejected the argu-ment that the additional procedural dueprocess created by Rivers v. Katz applicableto forcible medication over objection alsopreclude court-ordered assisted outpatienttreatment such as is permitted by Kendra’sLaw. In a unanimous opinion, the court held:

In contrast to Rivers, however, Kendra’sLaw is based on a legislative findingthat there are some mentally-ill personswho are “capable of living in the com-munity with the help of family, friendsand mental health professionals, butwho, without routine care and treat-ment, may relapse and become violentor suicidal, or require hospitalization”. .. . Any compulsion that the patientfeels to comply with the treatment planis justified by the court’s finding, byclear and convincing evidence, that thepatient needs AOT in order to preventa relapse or deterioration which is like-ly to cause serious harm to the patientor others. (Under these circumstances,a judicial finding of incapacity is notwarranted . . . .44

The Second Department then identified threeseparate challenges to the removal provisionof Kendra’s Law. First, Respondent allegedthat the removal provision failed to meetconstitutional procedural due process stan-dards, because it did not require a pre-removal judicial hearing. The court appliedthe test established by the U.S. SupremeCourt in Mathews v. Eldridge,45 whichrequires the weighing of three factors: 1.)The private interest that will be affected, 2.)The risk of an erroneous deprivation throughcurrent procedures and probable value ofsubstitute procedures, and 3.) The govern-ment’s interest, including the functioninvolved and the burdens associated withany substitute procedures. Applying this test,the law was found to comport with constitu-tional due process standards:

Here, the brief detention of a noncom-pliant assisted outpatient for a psychi-atric evaluation does not constitute asubstantial deprivation of liberty, andthe additional safeguard of a judicialhearing will not significantly reduce thepossibility of an erroneous removaldecision. Moreover, the government hasa strong interest in avoiding time-con-suming judicial hearings, which requiremental health professionals to defendtheir clinical decisions and divert scarceresources from the diagnosis and treat-ment of the mentally ill . . . . Also, anydetention beyond the initial 72 hours isgoverned by the statutory provisions for



involuntary commitments, which con-tain sufficient notice and hearing provi-sions to meet “procedural due processminima” (Project Release v Prevost, 722F.2d 960, 975).46

Respondent next challenged the removal pro-vision by arguing that since CPL 330.20(14)provides criminal defendants who are foundnot guilty by reason of mental disease ordefect with the right to a hearing beforebeing recommitted to a secure psychiatricfacility, that a person subject to a Kendra’sLaw order is deprived of their equal protec-tion rights because they do not have a similarright to a hearing. This position was quicklyrejected, because the situation of an insanityacquittee is sufficiently distinct from that ofan individual subject to civil commitment.47

Finally, the argument that removal pursuantto the statute violates the Fourth Amendmentto the United States Constitution because itdoes not require a finding of probable causewas also rejected. The statute requires aphysician to make several determinationsbased upon clinical judgment, mirroring theprovisions of M.H.L. 9.13, which in turn con-tains a “reasonable grounds” standard:

Under these circumstances, a physi-cian’s clinical judgment based on thestatutory criteria is sufficient to justifythe removal and detention of a non-compliant assisted outpatient for a 72-hour psychiatric evaluation.48

Respondent was unsatisfied with theAppellate Division’s rejection of his constitu-tional challenges, and made a final appeal tothe New York State Court of Appeals. InFebruary of 2004 in a unanimous opinionwritten by Chief Judge Judith Kaye, the high-est court, like the trial court and theAppellate Division before it, rejected all ofRespondent’s challenges and upheld the con-stitutionality of the statute in all respects.49

Once again, Respondent argued that the lawcould be saved if the court read into it therequirement that AOT was only permissible ifthere was a judicial determination that thesubject lacked capacity to make treatmentdecisions. This argument has as its funda-mental premise the notion that AOT is in facta type of medication over objection, and

equates the impact of AOT on the subject’sliberty interest with the infringement of liber-ty suffered by a psychiatric inpatient who issubject to forcible medication over objection.In other words, respondent argues that AOTis prohibited by Rivers v. Katz, in the absenceof the additional procedural due processmandated by that case.

The Court of Appeals rejected this argument,acknowledging that limiting AOT to thosewho lacked capacity “would have the effectof eviscerating the legislation,” and that “alarge number of patients potentially subjectto assisted outpatient treatment would beineligible for the program if a finding ofincapacity were required.”50 The very impe-tus for the law was the finding by theLegislature that many patients are capable ofliving safely in the community only with thebenefit of the structure and supervision ofAOT, and to require a finding of incapacitywould in essence exclude most of the indi-viduals the Legislature sought to assist.

The Court of Appeals quickly identified thecritical flaw in Respondent’s reasoning - thefailure to apprehend that the additional dueprocess required by Rivers is not applicableto AOT simply because medication overobjection is not authorized by Kendra’s Law:

Since Mental Hygiene Law § 9.60 doesnot permit forced medical treatment, ashowing of incapacity is not required.Rather, if the statute’s existing criteriasatisfy due process — as in this casewe conclude they do — then evenpsychiatric patients capable of makingdecisions about their treatment may beconstitutionally subject to its man-date…. As we made clear in Rivers, thefundamental right of mentally ill per-sons to refuse treatment may have toyield to compelling state interests (67NY2d at 495). The state “has authorityunder its police power to protect thecommunity from the dangerous ten-dencies of some who are mentally ill”(Addington v Texas, 441 US 418, 426[1979]). Accordingly, where a patientpresents a danger to self or others, thestate may be warranted, in the exerciseof its police power interest in prevent-ing violence and maintaining order, inmandating treatment over the patient’s



objection. Additionally, the state mayrely on its parens patriae power toprovide care to its citizens who areunable to care for themselves becauseof mental illness (see Rivers, 67 NY2dat 495).51

Respondent also urged the court to adoptthe position that even if Kendra’s Law didnot permit forcible medication over objec-tion, the fact that AOT subjects are orderedby a judge to take their medication mayprompt a subjective response from the indi-vidual amounting to coercion which is sosubstantial as be considered equivalent toforcible medication. This argument was like-wise summarily rejected:

The restriction on a patient’s freedomeffected by a court order authorizingassisted outpatient treatment is mini-mal, inasmuch as the coercive force ofthe order lies solely in the compulsiongenerally felt by law-abiding citizens tocomply with court directives. Foralthough the Legislature has deter-mined that the existence of such anorder and its attendant supervisionincreases the likelihood of voluntarycompliance with necessary treatment, aviolation of the order, standing alone,ultimately carries no sanction. Rather,the violation, when coupled with a fail-ure of efforts to solicit the assisted out-patient’s compliance, simply triggersheightened scrutiny on the part of thephysician, who must then determinewhether the patient may be in need ofinvoluntary hospitalization.52

Considering the high evidentiary burdenfaced by AOT petitioners, and the detailedcriteria in the statute and the considerableand important interests of the state in insur-ing the safety of the AOT subject as well asothers in the community, the court conclud-ed that the individual’s right to refuse treat-ment was not unconstitutionally infringed:

In any event, the assisted outpatient’sright to refuse treatment is outweighedby the state’s compelling interests inboth its police and parens patriae pow-ers. Inasmuch as an AOT orderrequires a specific finding by clear andconvincing evidence that the patient is

in need of assisted outpatient treatmentin order to prevent a relapse or deteri-oration which would be likely to resultin serious harm to self or others, thestate’s police power justifies the mini-mal restriction on the right to refusetreatment inherent in an order that thepatient comply as directed. Moreover,the state’s interest in the exercise of itspolice power is greater here than inRivers, where the inpatient’s confine-ment in a hospital under close supervi-sion reduced the risk of danger heposed to the community. In addition,the state’s parens patriae interest inproviding care to its citizens who areunable to care for themselves becauseof mental illness is properly invokedsince an AOT order requires findingsthat the patient is unlikely to survivesafely in the community without super-vision [and] . . . the patient is in needof assisted outpatient treatment in orderto prevent a relapse or deteriorationwhich would be likely to result in seri-ous harm to the patient or others . . .Inrequiring that these findings be madeby clear and convincing evidence andthat the assisted outpatient treatmentbe the least restrictive alternative, thestatute’s procedure for obtaining anAOT order provides all the process thatis constitutionally due.53

The argument that an individual’s constitu-tional equal protection rights are violated inthe absence of a finding of incapacity,because persons subject to guardianship pro-ceedings, and involuntarily committed inpa-tients must be accorded such a hearing priorto medication over objection, was also reject-ed. Reiterating that Kendra’s Law simply doesnot authorize medication over objection, thecourt held that “[t]he statute thus in no waytreats similarly situated persons differently.”54

Respondent also challenged the removal pro-vision of Kendra’s Law, contending thatbecause the law does not require a pre-removal hearing that the individual’s consti-tutional due process rights are violated. Thestatute permits the temporary removal of anindividual subject to an AOT order, if theindividual is non-compliant with treatment,efforts to solicit compliance have failed, anda physician determines that as a result the



individual may be in need of inpatient careand treatment. The individual may beretained for up to 72 hours to determinewhether he or she meets the standards forfurther retention found in any of a numberof other provisions of the Mental HygieneLaw. If at any time during the 72 hours it isdetermined that the individual does not meetthe standards for further retention, he or shemust be released.

The Court of Appeals, like the AppellateDivision, applied the balancing testannounced in the United States SupremeCourt case, Mathews v. Eldridge. The courtbalanced the interest affected, the risk ofdeprivation through the procedures in thelaw and the burden of alternative proce-dures, and the government’s interests servedby the law.

Applying the first factor of this test to theremoval provision of Kendra’s Law, the Courtof Appeals voiced disagreement with theAppellate Division, and found that the 72 hourretention did constitute a substantial depriva-tion of liberty. However, the Court of Appealsaffirmed the lower court’s ultimate conclusionthat considering the Mathews factors together,any infringement is outweighed by the consid-erable procedural safeguards and the veryimportant governmental interest at stake.55

With respect to the second factor, the risk ofan erroneous deprivation is minimized bythe fact that there must be a judicial finding,by clear and convincing evidence that,among other things, “the patient is unlikelyto survive safely in the community withoutsupervision; has a history of noncomplianceresulting in violence or necessitating hospi-talization; and is in need of assisted outpa-tient treatment in order to prevent a relapseor deterioration which would be likely toresult in serious harm.” In addition, the lawallows the individual’s treating physician todetermine the need for observation andinpatient care, which are clinical determina-tions, and not a judge, as Respondent urged.Considering these features of the law, thecourt concluded that “[a] pre-removal hearingwould therefore not reduce the risk of erro-neous deprivation.”56

Lastly, the governmental interest in reducingthe risk of harm to the individual or others

in the community was considered to be sig-nificant, and the addition of a pre-removalhearing to th already substantial proceduralsafeguards would have the undesired effectof frustrating that intent:

In addition, the state’s interest in immedi-ately removing from the streets noncom-pliant patients previously found to be, asa result of their noncompliance, at risk ofa relapse or deterioration likely to resultin serious harm to themselves or others isquite strong. The state has a further inter-est in warding off the longer periods ofhospitalization that, as the Legislature hasfound, tend to accompany relapse ordeterioration. The statute advances thisgoal by enabling a physician to personal-ly examine the patient at a hospital so asto determine whether the patient, throughnoncompliance, has created a need forinpatient treatment that the patient cannothimself or herself comprehend. A pre-removal judicial hearing would signifi-cantly reduce the speed with which thepatient can be evaluated and then receivethe care and treatment which physicianshave reason to believe that the patientmay need. Indeed, absent removal, thereis no mechanism by which to force anoncompliant patient to attend a judicialhearing in the first place.57

The last argument raised by Respondentalleged that removal pursuant to the law asviolated of the fourth amendment prohibitionagainst unreasonable searches and seizures,because the statute does not specify that aphysician must have probable cause tobelieve that an individual meets the criteria forremoval. The court in essence concluded thatthe proper exercise of clinical judgement bythe physician implies that such judgments willconform with the reasonableness standard:

It is readily apparent that the require-ment that a determination that a patientmay need care and treatment must bereached in the “clinical judgment” of aphysician necessarily contemplates thatthe determination will be based on thephysician’s reasonable belief that thepatient is in need of such care.58

As a result of the Court of Appeals decision,it is now well settled that Kendra’s Law is in



all respects a constitutional exercise of theState’s police power, and its parens patriaepower. Further, the removal provisions ofthe law have withstood constitutional scruti-ny. Because this opinion was rendered bythe Court of Appeals, which is the highestcourt in New York, the doctrine of staredecisis should preclude similar facial chal-lenges to the constitutionality of Kendra’sLaw in the future.

Decisions Construing the Statutory CriteriaIn addition to the decisions concerning con-stitutional issues in Matter of K.L., and Matterof Urcuyo, there is now some guidance fromthe courts concerning the statutory criteriafor Kendra’s Law orders, M.H.L. section9.60(c).

Soon after the statute became effective, anissue arose with respect to the proper con-struction of the alternative criteria concerninga respondent’s prior need for hospitalization,or prior violent acts. Among other criteria, aKendra’s Law petitioner must demonstrateunder M.H.L. section 9.60(c)(4):

[that] the patient has a history of lackof compliance with treatment for men-tal illness that has:(i) at least twice within the last thirty-

six months been a significant factorin necessitating hospitalization in ahospital, or receipt of services in aforensic or other mental health unitof a correctional facility or a localcorrectional facility, not includingany period during which the personwas hospitalized or incarceratedimmediately preceding the filing ofthe petition or:

(ii) resulted in one or more acts of seri-ous violent behavior toward self orothers or threats of, or attempts at,serious physical harm to self or oth-ers within the last forty-eightmonths, not including any period inwhich the person was hospitalizedor incarcerated immediately preced-ing the filing of the petition . . .

The Two Hospitalization CriteriaThe first prong of 9.60(c)(4) is satisfied whena petitioner demonstrates that a patient hasbeen hospitalized twice, as a result of treat-ment failures, within the past thirty-sixmonths (referred to as the “two hospitaliza-tions” criterion). The thirty-six month look-back period excludes the duration of anycurrent hospitalization.

In June of 2000, a Kendra’s Law petition wasbrought in Supreme Court, RichmondCounty, alleging that the respondent hadbeen hospitalized on two occasions withinthe statutory look- back period — within thetime period of the current hospitalizationplus thirty-six months.

In Matter of Sarkis,59 the respondent movedto dismiss the petition, arguing, among othergrounds, that the petition was deficientbecause it counted the current hospitalizationas one of the two hospitalizations requiredto satisfy 9.60(c)(4)(i). Respondent reasonedthat the statutory language which excludedthe duration of the current hospitalizationfrom the look-back period, must also beconstrued to exclude the current hospitaliza-tion from being counted as one of the twohospitalizations required.

The court relied on the specific languageof the statute, and rejected respondent’sargument:

[R]espondent’s position is based on aflawed interpretation of the statutoryprovision, which reads [9.60(c)(4)(i)] asmodifying the single word “hospitaliza-tion” appearing in the first clause ofMental Hygiene Law 9.60(c)(4), ratherthan the grammatically more consistent“thirty-six months” period during whichthe noncompliance resulting in suchhospitalizations must occur.60

It is the duration of the current hospitaliza-tion which is excluded from the look-backperiod. In any event, it is the need for hospi-talization as a result of noncompliance whichis at the bottom of the two hospitalizationrequirement. “The triggering event for pur-poses of Mental Hygiene Law 9.60(c)(4)(i) isnot the hospital admission but rather thenoncompliance with treatment necessitating

the hospitalization, and is complete beforethe hospitalization begins.”61

Respondent appealed the denial of his motionto dismiss, and the Appellate Division, SecondDepartment affirmed, writing:

[W]e agree with the Supreme Court’sinterpretation of Mental Hygiene Law s.9.60(c)(4)(i) . . . The appellant inter-prets this provision as precluding theconsideration of his hospitalizationimmediately preceding the filing of thepetition as one of the two required hos-pitalizations due to noncompliance withtreatment within the last 36 months. . .we reject the appellant’s interpretation .. . which would inexplicably requirecourts to disregard the most recent inci-dent of hospitalization due to noncom-pliance with treatment in favor of inci-dents more remote in time.62

The decision in Matter of Dailey,63 is inaccord with Matter of Sarkis. In Dailey, thecourt rejected an argument identical to thatoffered by respondent in Sarkis, holding thatreading the statutory language, together withthe legislative history, “leads to the conclu-sion that the section seeks only to expandthe number of months which a petitionercan look back to thirty-six months prior tothe current hospitalization and does notexclude the acts of non-compliance withtreatment and the current hospitalizationitself from consideration for an AOT order”64

In a decision further clarifying the two hospi-talization criteria, Supreme Court, SuffolkCounty held that in determining whether aparticular hospitalization falls within the statu-tory look back period, a petitioner may relyupon the latest date of the hospitalization, andnot the starting date. In Matter of Anthony F.,the earlier hospitalization began more thanthirty-six months prior to the petition, butended less than thirty-six months prior to thepetition. The court stated that as long as thepetitioner can establish a nexus between thecontinued hospitalization and a lack of com-pliance with treatment, the “thirty-six monthperiod is to be measured from the final dateof the earlier hospitalization.”65

The Violent Act CriteriaThe second prong of 9.60(c)(4) is satisfiedwhen a petitioner establishes that a patienthas committed one or more acts of seriousviolent behavior toward self or others orthreats of, or attempts at, serious physicalharm to self or others within the last forty-eight months (referred to as the “violent act”criterion). However, in language which issimilar to the two hospitalizations require-ment discussed above, the forty-eight monthlook- back period excludes the duration ofany current hospitalization or incarceration.

This provision of the statute was the subjectof an appeal to the Second Department. InMatter of Hector A.,66 the trial court had dis-missed the petition because the violent actrelied upon to satisfy the statutory criteriaoccurred while the patient was hospitalized.The respondent stabbed a hospital workerduring his current hospitalization, and theoutcome of the case hinged on whether thestabbing could be used to satisfy the violentact criterion of 9.60(c)(4). On appeal, peti-tioner argued that the forty-eight monthexclusion applies only to the duration of thelook-back period, and should not be read toexclude violent acts occurring during the cur-rent hospitalization. The respondent arguedthat the language excluding the duration ofthe current hospitalization from the forty-eight month look-back period also requiredthe court to exclude evidence of any violentacts or threats during the current hospitaliza-tion. The Second Department reversed thetrial court’s dismissal, and held that the evi-dence related to the stabbing was admissibleto satisfy the violent act requirement:

There is no merit to the patient’s argu-ment that the violent act he committedagainst a hospital employee must bedisregarded under Mental Hygiene Laws. 9.60(c)(4)(ii). This provision simplyextends the 48 month period for con-sidering the patient’s violent behaviorby the duration of his hospitalization orincarceration “immediately precedingthe filing of this petition”. This provi-sion in no way eliminates from consid-eration violent acts occurring duringthe hospitalization or incarceration.67



Hector A. cited with approval the rationalearticulated in Julio H.,68 where Respondentsought dismissal of an AOT petition, andargued for a construction of 9.60(c)(4)(ii)which would exclude violent acts whichoccur while a person is hospitalized frombeing used to satisfy the requirements of thatsection in an AOT petition.

The respondent in Matter of Julio H. movedfor dismissal of the AOT petition on twogrounds: First, he argued that the exclusionof the current hospitalization from the forty-eight month look back period also excludesany violent acts during the current hospital-ization. Second, he urged the Court toaccept the premise that a person who is cur-rently hospitalized is receiving treatment, istherefore deemed compliant, and thus vio-lent acts occurring during hospitalizationcould never be the result of non-compliancewith treatment.

Both arguments were rejected, with the resultthat respondent’s violent act occurring duringhis current hospitalization could be used tosatisfy the violent act criterion of M.H.L.9.60(c)(4)(ii). Further, there is no irrebuttablepresumption of compliance during hospital-ization, and the issue of whether a patienthas been non-compliant with treatment whilein a psychiatric hospital “is a fact to be deter-mined at the AOT hearing.”69 This is signifi-cant, because the petitioner must establish anexus between the patient’s violent behaviorand his failure to comply with treatment. Bydenying respondent’s argument that compli-ance in the hospital is presumed, the courtcreated an opportunity for petitioners todemonstrate a nexus between non-compli-ance, and violence, based on the patient’sbehavior while hospitalized.70

Decisions on the Applicability of the Physician-Patient PrivilegeIn addition to challenges to the constitution-ality of Kendra’s Law, and clashes over theappropriate construction of the two hospital-izations and violent act criteria, there havebeen challenges involving the type of evi-dence which may, or must be offered insupport of an AOT petition.

One significant evidentiary challengeinvolved the practice of having a patient’streating physician testify at the mandatoryhearing on the petition. The practice prompt-ed objections based on the physician-patientprivilege, which is codified in N.Y. Civ. Prac.L. & R. (“CPLR”) 4504.

Supreme Court, Queens County, was facedwith such a challenge in the Spring of 2000,in Matter of Nathan R.,71 and ultimately ruledthat the statutory privilege did not operate toprevent a treating physician from also fulfill-ing the role of examining physician in aKendra’s Law proceeding.

To meet the statutory requirements for AOT,a petition must be accompanied by an affi-davit by an “examining physician,” who muststate that he or she has personally examinedrespondent no more than 10 days prior tothe submission of the petition, that suchphysician recommends AOT, and that thephysician is willing and able to testify at thehearing on the petition.72 The examiningphysician is also required to testify at thehearing on the petition concerning the factsunderlying the allegation that the respondentmeets each of the AOT criteria, that it is theleast restrictive alternative, and concerningthe recommended treatment plan.73

In Nathan R., the examining physician wasalso respondent’s treating physician.Respondent moved to dismiss the petition,on the basis that “the physician-patient evi-dentiary privilege codified in CPLR 4504absolutely prohibits a treating psychiatristfrom submitting an affidavit or giving testi-mony in support of [an AOT] petition.”74

The motion to dismiss was denied:

CPLR 4504 does not prevent a treatingphysician from disclosing informationabout the patient under all circum-stances. . . . The protection of thephysician-patient privilege extends onlyto communications and not to facts. Afact is one thing and a communicationconcerning that fact is an entirely dif-ferent thing.75

The decision allowed that there may in factbe specific communications which are entitledto protection, but the burden is on themovant to demonstrate the existence of cir-



cumstances justifying the recognition of theprivilege. Even in such cases, the privilegewill only be held to attach to specific commu-nications, and broad, conclusory claims ofprivilege, such as those made by respondent’scounsel in Nathan R., will not suffice.76

Respondent also suggested that because atreating physician is among those enumerat-ed who may bring a petition, and a petition-er cannot also act as the examining physi-cian, a treating physician is statutorily pro-hibited from fulfilling the role of examiningphysician. This argument was also rejected:

It is unclear whether the [respondent] isalso claiming that Mental Hygiene Laws.9.60 prohibits a treating psychiatristfrom being the examining physician. Itdoes not. It only prevents a treatingpsychiatrist from being the petitioner ifthe treating psychiatrist is the examin-ing physician.77

Supreme Court, Queens County, was facedwith an identical argument, in a motion todismiss a Kendra’s Law petition shortly afterNathan R. was decided. In Amin v. RoseF.,78 respondent urged the court to dismissthe petition as insufficient, because therespondent’s treating physician was also theexamining physician, and therefore his testi-mony in support of the petition would beprohibited by the physician-patient privilege.In denying the motion, the court looked at,among other things, the legislative history ofKendra’s Law, and held:

[I]t is clear that the legislature intendedand desired for the subject’s treatingphysician to be intimately involved withthe various aspects of assisted outpatienttreatment, and thereby implicitly waivedthe physician-patient privilege for thepurposes of assisted outpatient treat-ment… Indeed, it would serve no use-ful purpose to insist on the physician-patient privilege under M.H.L. 9.60, and,in fact, would frustrate the clear inten-tion of the legislature to keep mentallyill persons in the community and out ofinpatient psychiatric hospitalization.Furthermore, once the privilege iswaived, it is waived for all purposes…This clearly includes allowing the treat-ing psychiatrist to examine the subject

of the AOT proceeding, and to testify asto his findings at that hearing.79

Therefore, although the statute prohibits atreating physician from being both the peti-tioner and the examining physician withrespect to a particular patient, the statutedoes not prohibit the treating physician fromalso being either the examining physician orthe petitioner.

The respondent in Amin appealed the deci-sion denying her motion to dismiss. Theoriginal petitioner did not file a responsivebrief or otherwise oppose the appeal,because by the time of the appeal, therespondent was no longer in petitioner’scare, and therefore petitioner did not identifyitself as having any real stake in the out-come. The Attorney General was grantedpermission by the Appellate Division to filean amicus brief, and argued for an affir-mance, based on the reasoning in Nathan R.,and Amin. However, because the respondentin Amin entered into a voluntary agreementupon expiration of the original order, theappeal was dismissed as academic.80 It isthus left to a future litigant to challenge theconcurrent reasoning of Nathan R. and Amin.

Other DecisionsIn Matter of Jason L.,81 a case before theSupreme Court, Monroe County, a disputeevolved concerning whether a respondenthas the right to a hearing before an order canissue for his removal to a hospital for thepurposes of the pre-petition examination.Even after the court formally requested thatrespondent submit to such an examination,he refused. Instead, respondent objected tothe request, demanding that he be providedwith a hearing prior to any court-orderedexamination, and that to do otherwise wouldviolate his constitutional due process rights.Relying on M.H.L. 9.60(h)(3), which governssituations where a patient refuses to permitan examination by a physician, the courtordered the removal for examination:

The court rejects respondent’s con-tention that the statute implies therequirement of such a hearing,although in some cases it may beappropriate to do so. [The petition] suf-



ficiently sets out grounds establishingreasonable cause to belief that the peti-tion is true. The respondent was givenample opportunity to be heard at oralargument with respect to the petitionand, indeed, plans to submit writtenopposition to the petition itself.However, this court feels that thestatute authorizes the court to make afinding on the papers submitted whenappropriate and empowers the court toauthorize the police to take respondentinto custody for purposes of the physi-cian examination.82

Jason L. provides guidance on the issue ofthe procedure for pre-hearing examinations,but leaves open the possibility that judgesmay find it appropriate in certain circum-stances to conduct a hearing prior to order-ing the removal of a patient for examination.The governing standard remains whether theaffidavits and other clinical evidence offeredby the petitioner establish reasonablegrounds to believe that the petition is true.This is a standard which is decidedly lowerthan that applicable to a decision on themerits of the petition, and the court in JasonL. was prudent in not allowing the hearingon the examination issue to expand into ahearing on the petition itself.

Questions regarding the evidentiary standardapplicable to AOT hearings have also foundtheir way into the courts. For example, inMatter of Jesus A.,83 respondent moved todismiss the petition, arguing that petitionerfailed to offer facts sufficient to establish thatan AOT order was appropriate. The courtwas critical of the affidavit of the examiningphysician, which merely paraphrased the cri-teria, concluding:

Clearly, these allegations, which arenothing more than conclusions, notfacts, are insufficient. It thus is theholding of this court that, as in allother cases, allegations which are noth-ing more than broad, simple concluso-ry statements are insufficient to state aclaim under section 9.60 of the MentalHygiene Law.84

The petitioner submitted a supplemental affi-davit in an attempt to cure the deficienciesfound in the original. This effort also failed,

because it was not based upon “personalknowledge or upon information and belief inwhich event the source of the informationand the grounds for the belief must be pro-vided.”85

If it was not clear prior to Jesus A., the foghas now lifted — the petition must containspecific evidence, whether in the form of doc-uments, affidavits or testimony, that all of thecriteria are met. This burden must be carriedby reference to facts, and the mere paraphras-ing of the statutory language will not suffice.

There has been some controversy surround-ing the question of whether the right to coun-sel provision of Kendra’s Law86 applies to thepre-hearing examination, which inevitablytakes place prior to the filing of the petitionand the official commencement of the pro-ceeding. In Matter of Nancy H., SupremeCourt, Dutchess County held that the right tocounsel attaches only after the proceeding iscommenced. Because the examination tookplace prior to the filing of the petition, whichcommenced the proceeding, the patient didnot have the right to have her attorney pres-ent during the examination.87 A different con-clusion was reached by Supreme Court,Otsego County in Matter of Noah C.88 InNoah C. the petitioner failed to provide noticeto the respondent’s counsel prior to an exami-nation in anticipation of a renewal petition.The court held that the proceeding had beencommenced by the filing of the original peti-tion, and that therefore the right to counselhad long since attached. In dicta, the courtsuggested that it shouldn’t matter whether thepetition is for an original order or for arenewal, and that in either instance thepatient’s counsel should receive notice priorto any pre-hearing examination.

One last issue worthy of discussion is theamount of discretion a court may exercise infashioning relief when deciding a Kendra’sLaw petition. In In re Application ofManhattan Psychiatric Center,89 theAppellate Division, Second Department, heldit is within the authority of a trial court togrant or deny a Kendra’s Law petition, but isbeyond its authority to order retention pur-suant to other sections of the M.H.L., ororder treatment other than what is includedin the treatment plan.





The case involved an AOT petition for apatient who, as well as having a history ofmental illness and treatment failures, had acriminal history resulting from violent behav-ior. After the required hearing, and uponconsent of the parties, the petition was grant-ed. However, the court held the order inabeyance, pending an independent psychi-atric evaluation of respondent. Although anAOT order ultimately was issued for thepatient, the trial court at one point deniedthe petition, based on its own determinationthat the patient met the criteria for continuedinpatient retention (the “dangerousness stan-dard”), and should not be returned to thecommunity, with or without AOT.

Respondent appealed, and the SecondDepartment decided a number of issuesraised by the lower court concerning thescope of that court’s authority under thestatute.90 The first issue was whether thecourt may make its own determination ofwhether the patient meets the dangerousnessstandard, and was therefore beyond thereach of AOT. The Second Departmentresponded in the negative, and held that theauthority of the trial court was limited todeciding whether the statutory criteria hadbeen met, and then either granting or deny-ing the petition. The decision whether torelease the patient is a clinical determinationleft, in this case, to the director of the hospi-tal. Kendra’s Law does not provide anavenue for the subordination of that clinicaljudgment to a judicial determination that thepatient should remain hospitalized.91

The second issue was whether M.H.L. sec-tion 9.60(e)(2)(ii), which permits the court toconsider evidence beyond what is containedin the petition, also implicitly provides theauthority for the court to make a judicialdetermination with respect to the dangerous-ness standard. The Second Departmentanswered again in the negative, and heldthat section 9.60(e)(2)(ii) only permits theconsideration of additional facts in decidingwhether the statutory criteria have been met,“[i]t is not an invitation to the court to con-sider the issue of dangerousness in respectof a decision to release the patient.”92

An issue was also raised concerning whethera court has discretion to deny a petition,where the statutory criteria have been met.

Noting that a court must deny the petition ifthe criteria have not been met, The SecondDepartment concluded:

Thus, the court’s discretion runs only tothe least restrictive outcome. In otherwords, a court may decide not to orderAOT for a person who meets the crite-ria, but it may not decide to order AOTfor a patient who does not meet thecriteria…. In any event, no measure ofdiscretion would be sufficient to permita court to bar the release of a hospital-ized patient (or, by extrapolation, toorder the involuntary admission of anunhospitalized patient) as an alternativeto ordering AOT, because Kendra’sLaw does not place that decisionbefore the court. 93

Accordingly, it is now the case that clinicaldecisions, such as determinations of danger-ousness, are not before the court duringKendra’s Law proceedings. Judicial discretionis limited to deciding whether a petitionerhas carried its burden of demonstrating thatthe statutory criteria are met by clear andconvincing evidence, and then either granti-ng or denying the petition.94

CONCLUSIONWhile there are still many issues that maywant for the clarity provided by judicialreview, a number of threshold issues havebeen resolved since Kendra’s Law becameeffective. Most importantly, the statute sur-vived constitutional challenges based uponthe right to control one’s treatment. Court-ordered AOT has been distinguished fromforcible medication over objection, and anyfears that such forced treatment would prolif-erate under Kendra’s Law should be allayedby judicial recognition of the fact that forcedmedication over objection is never appropri-ate in an AOT treatment plan, and in anyevent cannot occur absent sufficient dueprocess pursuant to Rivers v Katz.

It is currently the law that in meeting thetwo hospitalizations criterion, although theduration of the current hospitalization isexcluded from the respective look-back peri-od, the current hospitalization itself can beused to meet the criterion. When deciding

whether a prior hospitalization falls withinthe statutory look-back period, a petitionermay rely upon the latest date of the hospital-ization, rather than the date of admission.Similarly, in meeting the violent act criterion,although the duration of the current hospital-ization is excluded from the respective look-back period, the violent acts occurring dur-ing the current hospitalization can be used tomeet the criterion.

The petitioner must marshal facts and evi-dence, such as testimony from those withactual knowledge, in support of the petition.Mere recitations of the criteria, in affidavitform, will not suffice. In addition, while apatient’s treating physician cannot be boththe petitioner and the examining physicianin an AOT proceeding, the treating physiciancan be one or the other.

If a patient refuses to submit to an examina-tion, the court can order the removal of thepatient to a hospital for the purposes of theexamination. In such a circumstance, thepetitioner must meet specific criteria justifyingthe removal, but the patient does not have anabsolute right to a pre-removal hearing.

Finally, Kendra’s Law does not authorizecourts to make independent determinationsconcerning the issue of whether a patientmeets involuntary inpatient criteria, during aKendra’s Law proceeding. Statutory authori-ty extends only to the judicial determinationof whether the petitioner has met its burdenof proving by clear and convincing evi-dence that the statutory criteria have beenmet, and then the court may either grant ordeny the petition.

Endnotes1. Prior to the enactment of Kendra’s Law,

and prior to the tragic event involving Ms.Webdale, a pilot program for assisted out-patient treatment which was operated outof Bellevue Hospital in New York City.The pilot program was enacted in 1994and codified as Mental Hygiene Law sec-tion 9.61. The pilot program expired in1998. Although the pilot and the currentlaw differ in many details, the basic frame-work for the current statute was basedupon the pilot.

2. 1999 N.Y. Laws 408.

3. Office of Mental Health Statewide AOTReport as of December 31, 2004.

4. Much of the information concerning thepetition process in this article can be foundat the New York State Office of MentalHealth official web page,www.omh.state.ny.us, which contains agreat deal of useful information aboutKendra’s Law.

5. M.H.L. section 9.60(i)(1).6. M.H.L. section 9.60(h).7. M.H.L. section 9.60(j)(2).8. M.H.L. section 9.60(k).9. M.H.L. section 9.60(n).10. M.H.L. section 9.60(e)(1).11. M.H.L. section 9.60(e)(3)(i).12. M.H.L. section 9.60(h)(3). There has been

some debate concerning the issue ofwhether the hearing, is a right which waiv-able by the patient. Although some courtsmay grant petitions where all parties agreeto waive the hearing, the language of9.60(h)(2), and 9.60(i)(2), which expresslyprohibit the court from granting an AOTorder absent the examining physician’s tes-timony at the hearing, suggests that thehearing itself is non-waivable. Other provi-sions, such as 9.31 and 9.35 which createthe right to a hearing in the inpatient reten-tion context provide a procedure for thepatient to request a hearing, and in theabsence of such a request the hearing isdeemed waived.

13. M.H.L. section 9.60(c).14. M.H.L. section 9.60(j)(2).15. M.H.L. section 9.60(f).16. M.H.L. section 9.60(h).17. M.H.L. section 9.60 (j)(2).18. M.H.L. section 9.60(m).19. M.H.L. section 9.60(n).20. In December of 2000, the federal

Department of Health and Human Servicespromulgated regulations pursuant to theHealth Insurance Portability andAccountability Act of 1996 (HIPAA) estab-lishing standards for the privacy of individ-ually identifiable health information (45C.F.R. Parts 160 and 164). The general ruleestablished in these regulations is that indi-vidually identifiable health information can-not be used or disclosed by covered enti-ties (e.g. providers who engage in electron-ic transactions) without patient consent orauthorization. However, several of the listedexceptions to this requirement would per-mit covered entities to continue toexchange clinical information withoutpatient consent or authorization as requiredby Kendra’s Law and Kendra’s Law courtorders.

21. In re Urcuyo, 714 N.Y.S.2d 862 (Sup. Ct.Kings County, 2000).



22. Rivers v. Katz, 67 N.Y.2d 485 (1986).23. In re Urcuyo, 714 N.Y.S.2d at 841-42.24. Id., at 872, n., 3 (citations omitted).25. Id., at 869-70.26. Id., at 870.27. Project Release v. Provost, 772 F.2d 960 (2d

Cir., 1983)28. Matter of Seltzer v. Hogue, 187 A.D.2d 230

(Second Dept. 1993)29. See also, In re Francis S., 206 A.D.2d 4

(First Dept. 1995), aff’d 87 N.Y.2d 554(1995). Francis S., like the patient in Hogue,was not dangerous in the structured envi-ronment of a hospital, but in the communi-ty failed to comply with treatment anddecompensated to the point of dangerous-ness.

30. In the Matter of the Application of GlennMartin, For an Order Pursuant to Section9.60 of the Mental Hygiene Law (Kendra’sLaw) Authorizing Assisted OutpatientTreatment for K.L., 500748/00 (Sp. Ct.,Queens County, 2000), (Order GrantingKendra’s Law Petition).

31. Id., at 7.32. Id.33. Id.34. Id., at 8.35. Id., at 9.36. Id., at 10.37. Id., at 8.38. Id., at 9.39. Id., at 1040. Id., at 11.41. For example, M.H.L. section 9.37, which

provides for removal for a 72-hour observa-tion period upon certification by a Directorof Community Services was upheld in Woeby Woe v. Cuomo, 729 F.2d 96 (2nd Cir.1984), cert. den. 469 U.S. 936. The courtalso cited Thomas v. Culberg, 741 F.Supp.77 (S.D.N.Y. 1990), upholding section 9.41of the M.H.L., which permits police officersto take into custody a person who appearsto be mentally ill. The court in Matter ofK.L. noted that these warrantless detentionprovisions were upheld, even though,unlike detentions pursuant to Kendra’s Law,they do not follow from earlier judicial find-ings.

42. Matter of K.L., 302 A.D.2d 388, 389 (SecondDept., 2003)

43. Id.44. Id., at 390 (citations ommitted).45. 424 U.S. 319.46. Matter of K.L., 302 A.D.2d 388, 391.47. Id.48. Id., at 391-39249. Matter of K.L., 1 N.Y.3d 362 (2004). The

Court of Appeals decision, Matter of K. L.,is reprinted in Appendix 3.)

50. Id., at 369.

51. Id., at 370.52. Id.53. Id., at 371-372.54. Id., at 372.55. Id.56. Id.57. Id., at 373-37458. Id., At 37459. Matter of Sarkis, (NYLJ, Aug. 18, 2000, at

29, col 6).60. Id.61. Id.62. In the Matter of South Beach Psychiatric

Center, etc., respondent; Andre R., 727N.Y.S.2d 149, 150 (Second Dept. 2001),(citations omitted).

63. Matter of Dailey, 713 N.Y.S.2d 660, (Sup. Ct.Queens County, 2000).

64. Matter of Dailey, 713 N.Y.S.2d at 663(emphasis in original).

65. In the Matter of Pilgrim Psychiatric Centerv. Anthony F., 18601/01 (S.Ct. Suffolk Cty,2002), (Order Denying Motion to DismissKendra’s Law Petition).

66. In the Matter of Weinstock, appellant:Hector A. (Anonymous), respondent, 733N.Y.S.2d 243 (Second Department, 2001).

67. Id., at 245.68. In the Matter of Weinstock, for an order

Authorizing Outpatient treatment for JulioH., 723 N.Y.S.2d 617 (Sup. Ct. KingsCounty, 2001).

69. Id., at 619.70. See, In the Matter of Weinstock, for an

Order Authorizing Assisted OutpatientTreatment for Shali K., 742 N.Y.S.2d 447(Sup.Ct., Kings County 2002), where thecourt accepted the argument that a violentact in the hospital may count under thestatute, but denied the petition becausepetitioner failed to establish a nexusbetween the violent act and respondent’streatment failures.

71. In the Matter of Sullivan, for an OrderAuthorizing Outpatient Treatment forNathan R., 710 N.Y.S.2d 804 (Sup Ct.Queens County, 2000).

72. M.H.L. section 9.60(e)(3)(i).73. M.H.L. section 9.60(h)(4).74. Matter of Nathan R., 710 N.Y.S.2d at 805

(quoting respondent’s counsel).75. Id., at 805.76. Id., at 806.77. Id.78. Amin v. Rose F., (NYLJ, December 7, 2000,

at 31, col 1).79. Id.80. In the Matter of Rose F. v. Amin, 739

N.Y.S2d 834 (Second Dept. 2002).81. Matter of Director of Community Services,

for an Order Authorizing AssistedOutpatient Treatment for Jason L., 715



N.Y.S.2d 833 (Sup. Ct. Monroe County,2000).

82. Id., at 189.83. In the Matter of Sullivan, for an Order

Authorizing Outpatient Treatment for JesusA., 710 N.Y.S.2d 853 (Sup. Ct. QueensCounty, 2000).

84. Id., at 857 (citations omitted).85. Id. (Citations omitted).86. M.H.L. section 9.60(g).87. Matter of Nancy H., No. 125/2000 - MI

(Dutchess Cty, 2000), (Order DenyingMotion to Dismiss for Lack of SubjectMatter Jurisdiction).

88. Matter of Noah C., No. 8598 (Otsego Cty,2003), (Order Granting Motion to Dismissfor Failure to Notice Patient’s Counsel Priorto Examination).

89. In re Application of Manhattan PsychiatricCenter, 728 N.Y.S.2d 37 (Second Dept.,2001).

90. Because the court did eventually sign anAOT order for the patient, the matter wouldappear to be beyond appellate review,based on the mootness doctrine. TheSecond Department accepted the case as anexception to the mootness doctrine,because it is “likely to be repeated, itinvolves a phenomenon which typicallyevades review, and it implicates substantialand novel issues.” Id., at 39.

91. Id., at 42.92. Id., at 43.93. Id., at 43, 44 (citations omitted).94. See also In the Matter of Endress, for an

order Authorizing Outpatient Treatment forBarry H., 732 N.Y.S.2d 549 (Sup. Ct. OniedaCounty, 2001). The court in Endressbelieved that the patient should not bereleased into the community at all, but cit-ing Matter of Manhattan Psychiatric Center,reluctantly granted the AOT petition, as themost appropriate outcome, given its limitedalternatives.





KAYE, CHIEF JUDGE:

On January 3, 1999, Kendra Webdale waspushed to her death before an oncomingsubway train by a man diagnosed with para-noid schizophrenia who had neglected totake his prescribed medication. Respondingto this tragedy, the Legislature enactedMental Hygiene Law § 9.60 (Kendra’s Law) (L1999, ch 408), thereby joining nearly 40other states in adopting a system of assistedoutpatient treatment (AOT) pursuant towhich psychiatric patients unlikely to survivesafely in the community without supervisionmay avoid hospitalization by complying withcourt-ordered mental health treatment.

In enacting the law, the Legislature foundthat “there are mentally ill persons who arecapable of living in the community with thehelp of family, friends and mental healthprofessionals, but who, without routine careand treatment, may relapse and become vio-lent or suicidal, or require hospitalization” (L1999, ch 408, § 2). And in mandating thatcertain patients comply with essential treat-ment pursuant to a court-ordered writtentreatment plan, the Legislature further foundthat “there are mentally ill persons who canfunction well in the community with supervi-sion and treatment, but who without suchassistance, will relapse and require long peri-ods of hospitalization. * * * [S]ome mentallyill persons, because of their illness, havegreat difficulty taking responsibility for their

Appendix 3

This opinion is uncorrected and subject to revisionbefore publication in the New York Reports.

2 No. 6 In the Matter of K. L. (Anonymous),

Appellant. Glenn Martin, &c., Respondent,

Attorney General of the State of New York, Intervenor-Respondent.

Dennis B. Feld, for appellant. Sachin S. Pandya, forintervenor-respondent.Stephen J. McGrath, for respondent. New York LawyersFor The Public Interest, Inc.,et al., amici curiae.



own care, and often reject the outpatienttreatment offered to them on a voluntarybasis. Family members and caregivers oftenmust stand by helplessly and watch theirloved ones and patients decompensate” (id.).

Studies undertaken in other jurisdictions withAOT laws have found that outpatients sub-ject to court orders had fewer psychiatricadmissions, spent fewer days in the hospitaland had fewer incidents of violence thanoutpatients without court orders (see Mem ofOff of Atty Gen, Bill Jacket, L 1999, ch 408,at 13, citing Marvin S. Swartz et al., CanInvoluntary Outpatient Commitment ReduceHospital Recidivism?: Findings From aRandomized Trial With Severely Mentally IllIndividuals, 156 Am J Psychiatry 1968 [1999]).Kendra’s Law was thus adopted in an effortto “restore patients’ dignity * * * [and] enablementally ill persons to lead more productiveand satisfying lives” (id.), while at the sametime reducing the risk of violence posed bymentally ill patients who refuse to complywith necessary treatment.

In October 2000, a petition was filed seekingan order authorizing assisted outpatient treat-ment for respondent K.L. Respondent suf-fered from schizoaffective disorder, bipolartype, and had a history of psychiatric hospi-talization and noncompliance with prescribedmedication and treatment, as well as aggres-siveness toward family members during peri-ods of decompensation. The treatment pre-scribed in the proposed order included a reg-imen of psychiatric outpatient care, case man-agement, blood testing, individual therapyand medication. Pursuant to the plan, respon-dent was required in the first instance to oral-ly self-administer Zyprexa. If, however, hewas “non-compliant with above,” the planrequired that he instead voluntarily submithimself to the administration of HaldolDecanoate by medical personnel.

Respondent opposed the petition, challeng-ing the constitutionality of Kendra’s Law in anumber of respects. Supreme Court and theAppellate Division rejected each of respon-dent’s constitutional arguments, as do we.

I.

Before a court may issue an order for assistedoutpatient treatment, the statute requires thata hearing be held at which a number of crite-ria must be established, each by clear andconvincing evidence. The court must find that(1) the patient is at least 18 years of age; (2)the patient suffers from a mental illness; (3)the patient is unlikely to survive safely in thecommunity without supervision, based on aclinical determination; (4) the patient has ahistory of lack of compliance with treatmentfor mental illness that has either (a) at leasttwice within the last 36 months been a signifi-cant factor in necessitating hospitalization, orreceipt of services in a forensic or other men-tal health unit of a correctional facility or alocal correctional facility, not including anyperiod during which the person was hospital-ized or incarcerated immediately precedingthe filing of the petition, or (b) resulted inone or more acts of serious violent behaviortoward self or others or threats of, or attemptsat, serious physical harm to self or otherswithin the last 48 months, not including anyperiod in which the person was hospitalizedor incarcerated immediately preceding the fil-ing of the petition; (5) the patient is, as aresult of his or her mental illness, unlikely tovoluntarily participate in the recommendedtreatment pursuant to the treatment plan; (6)in view of the patient’s treatment history andcurrent behavior, the patient is in need ofassisted outpatient treatment in order to pre-vent a relapse or deterioration which wouldbe likely to result in serious harm to thepatient or others; and (7) it is likely that thepatient will benefit from assisted outpatienttreatment (see Mental Hygiene Law § 9.60 [c]).The court must also find by clear and con-vincing evidence that the assisted outpatienttreatment sought is the least restrictive treat-ment appropriate and feasible for the patient(see Mental Hygiene Law § 9.60 [j] [2]).

If an assisted outpatient later fails or refusesto comply with treatment as ordered by thecourt; if efforts to solicit voluntary compli-ance are made without success; and if in theclinical judgment of a physician, the patientmay be in need of either involuntary admis-sion to a hospital or immediate observation,care and treatment pursuant to standards setforth in the Mental Hygiene Law,1 then thephysician can seek the patient’s temporary

removal to a hospital for examination todetermine whether hospitalization is required(see Mental Hygiene Law § 9.60 [n]).

II.

Respondent contends that the statute violatesdue process because it does not require afinding of incapacity before a psychiatricpatient may be ordered to comply withassisted outpatient treatment. He asks thatwe read such a requirement into the law inorder to preserve its constitutionality.

In Rivers v Katz (67 NY2d 485 [1986]), we heldthat a judicial finding of incapacity to make areasoned decision as to one’s own treatment isrequired before an involuntarily committedpatient may be forcibly medicated with psy-chotropic drugs against his or her will. MentalHygiene Law § 9.60, however, neither author-izes forcible medical treatment in the firstinstance nor permits it as a consequence ofnoncompliance with court-ordered AOT.2

Nevertheless, respondent urges that, underRivers, a showing of incapacity is requiredbefore a psychiatric patient may be orderedby a court to comply with any assisted outpa-tient treatment. Although respondent — inasking us to read a requirement of incapacityinto the statute — disclaims any effort tostrike down the law, such a reading wouldhave the effect of eviscerating the legislation,inasmuch as the statute presumes that assist-ed outpatients are capable of actively partici-pating in the development of their writtentreatment plans, and specifically requires thatthey be afforded an opportunity to do so(see Mental Hygiene Law § 9.60 [i] [1]).Indeed, the law makes explicit that “[t]hedetermination by a court that a patient is inneed of assisted outpatient treatment shall notbe construed as or deemed to be a determi-nation that such patient is incapacitated pur-suant to article eighty-one” of the MentalHygiene Law [governing guardianship pro-ceedings] (Mental Hygiene Law § 9.60 [o]).

Respondent concedes that a large number ofpatients potentially subject to court-orderedassisted outpatient treatment would be ineli-gible for the program if a finding of incapaci-ty were required. In enacting Kendra’s Law,the Legislature determined that certain

patients capable of participating in their owntreatment plans could remain safely in thecommunity if released subject to the struc-ture and supervision provided by a court-ordered assisted treatment plan. Such a planmay enable patients who might otherwiserequire involuntary hospitalization to live andwork freely and productively through com-pliance with necessary treatment.

Since Mental Hygiene Law § 9.60 does notpermit forced medical treatment, a showingof incapacity is not required. Rather, if thestatute’s existing criteria satisfy due process— as in this case we conclude they do —then even psychiatric patients capable ofmaking decisions about their treatment maybe constitutionally subject to its mandate.

While “[e]very human being of adult yearsand sound mind has a right to determinewhat shall be done with his own body”(Schloendorff v Socy. of New York Hosp.,211 NY 125, 129 [1914]) and to “control thecourse of his medical treatment” (Matter ofStorar v Dillon, 52 NY2d 363, 376 [1981]),these rights are not absolute. As we madeclear in Rivers, the fundamental right ofmentally ill persons to refuse treatment mayhave to yield to compelling state interests (67NY2d at 495). The state “has authority underits police power to protect the communityfrom the dangerous tendencies of some whoare mentally ill” (Addington v Texas, 441 US418, 426 [1979]). Accordingly, where apatient presents a danger to self or others,the state may be warranted, in the exerciseof its police power interest in preventing vio-lence and maintaining order, in mandatingtreatment over the patient’s objection.Additionally, the state may rely on its parenspatriae power to provide care to its citizenswho are unable to care for themselvesbecause of mental illness (see Rivers, 67NY2d at 495).

The restriction on a patient’s freedom effect-ed by a court order authorizing assisted out-patient treatment is minimal, inasmuch as thecoercive force of the order lies solely in thecompulsion generally felt by law-abiding citi-zens to comply with court directives. Foralthough the Legislature has determined thatthe existence of such an order and its atten-dant supervision increases the likelihood ofvoluntary compliance with necessary treat-



ment, a violation of the order, standingalone, ultimately carries no sanction. Rather,the violation, when coupled with a failure ofefforts to solicit the assisted outpatient’s com-pliance, simply triggers heightened scrutinyon the part of the physician, who must thendetermine whether the patient may be inneed of involuntary hospitalization.

Of course, whenever a physician determinesthat a patient is in need of involuntary com-mitment — whether such a determinationcame to be made after an assisted outpatientfailed to comply with treatment or wasreached in the absence of any AOT order atall — the patient may be hospitalized only ifthe standards for such commitment con-tained in the Mental Hygiene Law are satis-fied. These standards themselves satisfy dueprocess (see Project Release v Prevost, 722F2d 960 [2d Cir 1983]). If, however, the non-compliant patient is not found to be in needof hospitalization, the inquiry will be at anend and the patient will suffer no adverseconsequence. For as the statute explicitlyprovides, “Failure to comply with an order ofassisted outpatient treatment shall not begrounds for involuntary civil commitment ora finding of contempt of court” (MentalHygiene Law § 9.60 [n]). Moreover, anyrestriction on an assisted outpatient’s libertyinterest felt as a result of the legal obligationto comply with an AOT order is far lessonerous than the complete deprivation offreedom that might have been necessary ifthe patient were to be or remain involuntari-ly committed in lieu of being released oncondition of compliance with treatment.

In any event, the assisted outpatient’s right torefuse treatment is outweighed by the state’scompelling interests in both its police andparens patriae powers. Inasmuch as an AOTorder requires a specific finding by clear andconvincing evidence that the patient is in needof assisted outpatient treatment in order to pre-vent a relapse or deterioration which would belikely to result in serious harm to self or others,the state’s police power justifies the minimalrestriction on the right to refuse treatmentinherent in an order that the patient comply asdirected. Moreover, the state’s interest in theexercise of its police power is greater here thanin Rivers, where the inpatient’s confinement ina hospital under close supervision reduced therisk of danger he posed to the community.

In addition, the state’s parens patriae interestin providing care to its citizens who areunable to care for themselves because ofmental illness is properly invoked since anAOT order requires findings that the patientis unlikely to survive safely in the communi-ty without supervision; the patient has a his-tory of lack of compliance with treatmentthat has either necessitated hospitalization orresulted in acts of serious violent behavior orthreats of, or attempts at, serious physicalharm; the patient is unlikely to voluntarilyparticipate in the recommended treatmentplan; the patient is in need of assisted outpa-tient treatment in order to prevent a relapseor deterioration which would be likely toresult in serious harm to the patient or oth-ers; and it is likely that the patient will bene-fit from assisted outpatient treatment.

In requiring that these findings be made byclear and convincing evidence and that theassisted outpatient treatment be the leastrestrictive alternative, the statute’s procedurefor obtaining an AOT order provides all theprocess that is constitutionally due.

Nor does Mental Hygiene Law § 9.60 violateequal protection by failing to require a find-ing of incapacity before a patient can besubjected to an AOT order. Although personssubject to guardianship proceedings andinvoluntarily committed psychiatric patientsmust be found incapacitated before they canbe forcibly medicated against their will, acourt-ordered assisted outpatient treatmentplan simply does not authorize forcible med-ical treatment — nor, of course, could it,absent incapacity. The statute thus in no waytreats similarly situated persons differently(see City of Cleburne v Cleburne Living Ctr.,Inc., 473 US 432, 439 [1985]).

III.

Respondent next challenges the detentionprovisions of Kendra’s Law, contending thatthe failure of the statute to provide for noticeand a hearing prior to the temporaryremoval of a noncompliant patient to a hos-pital violates due process.

Under Mental Hygiene Law § 9.60 (n), whenan assisted outpatient who persists in thefailure or refusal to comply with court-



ordered treatment may, in the clinical judg-ment of a physician, be in need of involun-tary hospitalization, the physician may seekthe removal of the patient to a hospital foran examination to determine whether hospi-talization is indeed necessary. If the assistedoutpatient refuses to take medication — orrefuses to take or fails a blood test, urinaly-sis, or alcohol or drug test — as required bythe court order, the physician may considerthis refusal or failure when determiningwhether such an examination is needed. Anoncompliant patient thus removed underKendra’s Law may then be retained in thehospital for observation, care and treatment,and further examination, for up to 72 hours,in order to permit a physician to determinewhether the patient has a mental illness andis in need of involuntary hospital care andtreatment pursuant to the provisions of theMental Hygiene Law. A patient who at anytime during the 72-hour period is determinednot to meet the standards for involuntaryadmission and retention and does not con-sent to remain must be immediately released.

When the state seeks to deprive an individ-ual of liberty, it must provide effective proce-dures to guard against an erroneous depriva-tion. A determination of the process that isconstitutionally due thus requires a weighingof three factors: the private interest affected;the risk of erroneous deprivation through theprocedures used and the probable value ofother procedural safeguards; and the govern-ment’s interest (see Mathews v Eldridge, 424US 319, 335 [1976]).

While we disagree with the AppellateDivision’s determination that the involuntarydetention of a psychiatric patient for up to72 hours does not constitute a substantialdeprivation of liberty, we nevertheless con-clude that the patient’s significant libertyinterest is outweighed by the other Mathewsfactors. In the context of the entire statutoryscheme, the risk of an erroneous deprivationpending the limited period during which anexamination must be undertaken to deter-mine whether a persistently noncompliantpatient is in need of involuntary care andtreatment is minimal. For before a courtorder authorizing an AOT plan is issued,there must already have been judicial find-ings by clear and convincing evidence thatthe patient is unlikely to survive safely in the

community without supervision; has a histo-ry of noncompliance resulting in violence ornecessitating hospitalization; and is in needof assisted outpatient treatment in order toprevent a relapse or deterioration whichwould be likely to result in serious harm.Nor is a court better situated than a physi-cian to determine whether the grounds fordetention — persistent noncompliance andthe need for involuntary commitment —have been met. A pre-removal hearingwould therefore not reduce the risk of erro-neous deprivation.

In addition, the state’s interest in immediatelyremoving from the streets noncompliantpatients previously found to be, as a result oftheir noncompliance, at risk of a relapse ordeterioration likely to result in serious harmto themselves or others is quite strong. Thestate has a further interest in warding off thelonger periods of hospitalization that, as theLegislature has found, tend to accompanyrelapse or deterioration. The statute advancesthis goal by enabling a physician to person-ally examine the patient at a hospital so as todetermine whether the patient, through non-compliance, has created a need for inpatienttreatment that the patient cannot himself orherself comprehend. A pre-removal judicialhearing would significantly reduce the speedwith which the patient can be evaluated andthen receive the care and treatment whichphysicians have reason to believe that thepatient may need. Indeed, absent removal,there is no mechanism by which to force anoncompliant patient to attend a judicialhearing in the first place.

Respondent contends that a comprehensivepsychiatric examination can be easily per-formed in less than 72 hours after removal.But since the temporary detention permittedby the statute comports with due process, itis not for us to determine whether the 72-hour limit is ideal, or necessary, or wise. Aslong as the time period satisfies constitution-al requirements — which it does — it is notfor this Court to substitute its judgment forthat of the Legislature.

Finally, we find no violation of the constitu-tional prohibition against unreasonable search-es and seizures (see US Const, 4th Amend; NYConst, art I, § 12) in the statute’s failure tospecify that a physician must have probable



cause or reasonable grounds to believe that anoncompliant assisted outpatient is in need ofinvoluntary hospitalization before he or shemay seek the patient’s removal. It is readilyapparent that the requirement that a determi-nation that a patient may need care and treat-ment must be reached in the “clinical judg-ment” of a physician necessarily contemplatesthat the determination will be based on thephysician’s reasonable belief that the patient isin need of such care.

Accordingly, the order of the AppellateDivision should be affirmed, without costs.

* * * * * * * * * * * *

Order affirmed, without costs. Opinion by Chief Judge Kaye.Judges George Smith, Ciparick, Rosenblatt,Graffeo and Read concur. Judge RobertSmith took no part.

Decided February 17, 2004

Endnotes1 Under Mental Hygiene Law § 9.27, a person may

be involuntarily admitted to a hospital upon thecertification of two physicians when he or sheis in need of involuntary care and treatment,defined as having “a mental illness for whichcare and treatment as a patient in a hospital isessential to such person’s welfare and whosejudgment is so impaired that he is unable tounderstand the need for such care and treat-ment” (Mental Hygiene Law § 9.01). UnderMental Hygiene Law §§ 9.39 and 9.40, persons inneed of immediate observation, care and treat-ment may be admitted to a hospital on an emer-gency basis when they have a mental illnesswhich is likely to result in serious harm to them-selves or others, defined as a “substantial risk ofphysical harm to himself as manifested bythreats of or attempts at suicide or serious bod-ily harm or other conduct demonstrating that heis dangerous to himself, or * * * a substantial riskof physical harm to other persons as manifestedby homicidal or other violent behavior by whichothers are placed in reasonable fear of seriousphysical harm” (Mental Hygiene Law § 9.39 [1],[2]).

2 Inasmuch as the statute does not — and couldnot, absent a showing of incapacity — author-ize the forcible administration of psychotropicdrugs, any AOT order purporting to containsuch a direction would exceed the authority ofthe law. Respondent’s treatment plan containedno such illegal direction. Any persistent refusalto comply with the directive that he voluntarilysubmit to the administration of Haldol wouldnot have resulted in his being forcibly medicat-ed. Rather, the sole consequence would havebeen that a physician might then have deter-mined that respondent may have been in needof involuntary hospitalization. In that event,respondent could have been temporarilyremoved to a hospital for examination (seeMental Hygiene Law § 9.60 [n]).



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