This is not the outpatient commitment law anyone wants
Guest Post by Dinah Miller and Erik Roskes
This is a guest post by Dinah Miller, MD, and Erik Roskes, MD, about proposed legislation pertaining to “Assisted Outpatient Treatment” in the Maryland General Assembly.
Dinah Miller, MD, is a psychiatrist and author of “Committed: The Battle Over Involuntary Psychiatric Care” (Johns Hopkins University Press, 2016). Erik Roskes, MD, is a forensic psychiatrist.
It is excruciating to watch someone you love suffer from a severe mental illness. It is even more awful if they refuse to get treatment, and if you worry they might end up homeless or in jail. While every state has a mechanism to involuntarily hospitalize a person who is suicidal or dangerous due to a psychiatric disorder, Maryland is one of three states that does not have outpatient civil commitment to mandate treatment outside of a hospital.
The Treatment Advocacy Center, a Virginia-based advocacy center, has proposed legislation for outpatient civil commitment laws in Maryland, repeatedly and unsuccessfully. The term they use is ‘Assisted Outpatient Treatment (AOT),’ but no assistance is provided. The issue is a controversial one; we all value autonomy when it comes to our health care decisions, and we allow people to make bad decisions all the time.
The argument here is that people with psychiatric conditions may not recognize that they are ill. While that is one reason to refuse psychotropic medications, there are others. Our treatments don’t work for everyone and some people have side effects, which may include weight gain, sexual dysfunction, lethargy, diabetes, and movement disorders, to name a few. And while it’s true that people with psychiatric disorders may not recognize their need for medication, it is also true that people with cardiac disease also have high rates of noncompliance, with some estimates exceeding 60%. For any number of reasons, people don’t like taking medications, don’t think they need them, have trouble getting them, or can’t afford them.
AOT has been heralded as a cure for many of society’s problems—a way to reduce violence, homelessness, hospitalizations, incarcerations, and even mass murder. Every state administers it differently—most states that have the legislation don’t use it, or use it haphazardly. There have been concerns about racial disparities, and enforcement is difficult.
The legislation that has been proposed in the Maryland General Assembly this year, SB480/HB823, was thoughtless. Anyone who has been hospitalized twice in 4 years (including voluntary admissions), or has ever been incarcerated, because they are presumed to have been non-compliant with treatment, would be eligible for outpatient commitment. While AOT in these circumstances is not an emergency, the proposed law allowed any interested party to file a petition, and a hearing would’ve been required to occur within three days. The petition required a psychiatrist’s affidavit, but the psychiatrist did not have to know the patient! A patient who refused an evaluation could be taken from their home or work, brought in for an evaluation, and held for up to 24 hours. While the proposed law stipulated the right to representation, it is not at all clear how one finds thoughtful representation that quickly, nor is it clear what that psychiatric evaluation might consist of—would it be done in an Emergency Department in an hour or less? And if the patient can’t be located, the hearing could go on without them; it’s possible people will not even know they’ve been mandated to treatment!
The proposed legislation, like each year’s version proposed by the Treatment Advocacy Center, is a “what if” law full of holes and incongruities.
The proposed legislation, like each year’s version proposed by the Treatment Advocacy Center, is a “what if” law full of holes and incongruities. What if the patient refuses evaluation? What if the patient can’t be located? What if the doctor can’t examine the patient? And where does one find a psychiatrist who has never examined a patient to come sit in court and wait to testify? Where does one find a ready-and-waiting treatment team to follow the patient after outpatient commitment (yet another requirement of the legislation)?
Our bigger problem is a broken and inadequately funded mental health system. There are not enough hospital beds. There are not enough supported residential programs, and assertive community treatment programs, and psychiatric rehabilitation programs. There is inadequate housing. There are too few psychiatrists and other clinicians. With all due respect to the hearing officers who will be forced to make these decisions, mandating someone to a program that does not exist will be an unenforceable order. And while administrative costs of the program are considerable, there is no extra funding for treatment.
Our bigger problem is a broken and inadequately funded mental health system. There are not enough hospital beds. There are not enough supported residential programs, and assertive community treatment programs, and psychiatric rehabilitation programs. There is inadequate housing. There are too few psychiatrists and other clinicians. With all due respect to the hearing officers who will be forced to make these decisions, mandating someone to a program that does not exist will be an unenforceable order.
Does mandated outpatient treatment work? The jury came back saying that it helps (some people) when it comes with supports and assistance. A single controlled study also showed that outpatient commitment works if it is just a judicial order, with no financial assistance, and that study is often cited as proof that AOT works, even if there is no actual assistance given to patients. That study looked at patients who had been involuntarily hospitalized in rural North Carolina in 1993-1996, and found that a commitment order of 90 days or less did not change outcomes. For those who were committed to outpatient treatment for over 180 days, there were decreases in the rates of arrests, hospitalization, and victimization. It was a small number of patients (approximately 45) who were committed for that long, and one might wonder if the results with 45 people in rural North Carolina in the 1990’s can be generalized to those living in major metropolitan areas 30 years later. It’s interesting that all of the patients were given case management services upon discharge, a service that is not being offered to those discharged from Maryland hospitals, and the study was limited to patients who had been involuntarily committed, while our proposed legislation includes those who were admitted voluntarily—so that fear of involuntary outpatient treatment may serve as one more deterrent for people who might otherwise seek voluntary inpatient care.
The Virginia Tech mass murderer was ordered to outpatient care, he simply didn’t go. In one of my (Dr. Roskes) roles, I review several hundred medical records every year involving criminal defendants at Rikers Island. New York is one of the so-called “models” that supporters look to for guidance. At least 10% of the cases I review involve people who were on “AOT” orders when they were arrested. This bill is not the panacea that its supporters want you to believe it is.
This is not to say that outpatient civil commitment is not helpful to some people. If we are going to consider mandating outpatient care, however, we need to do so with a much smaller net and with much more thoughtfulness. It should be reserved for those patients with documented psychotic disorders who rotate in and out of facilities, who are known to respond to the medications, and who have not had intolerable side effects. This can take time and effort, yet prescribers now see huge caseloads of patients for very short appointments. Outpatient civil commitment should include assistance, case management, peer support, housing, transportation, and compassionate, attentive care. It should be reserved for our sickest and most dangerous patients, when all other attempts to engage people in voluntary care have failed.
If we are going to consider mandating outpatient care, we need to do so with a much smaller net and with much more thoughtfulness. It should be reserved for those patients with documented psychotic disorders who rotate in and out of facilities, who are known to respond to the medications, and who have not had intolerable side effects. Outpatient civil commitment should include assistance, case management, peer support, housing, transportation, and compassionate, attentive care. It should be reserved for our sickest and most dangerous patients, when all other attempts to engage people in voluntary care have failed.
This year’s legislation has been sent to committee, but we have no doubt it will be proposed again next year. What has your experience of outpatient civil commitment been in your state?
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You make good points about the shortcomings of the proposed AOT law, but the status quo of favoring civil liberties isn't working so well for homeless people with psychotic disorders in my home state of Texas. And while its certainly true that medications do not work for everyone and often have troubling side-effects, I have noticed that people and organizations that call attention to iatrogenic harm never seem to point out the risks associated with not taking medications (e.g., suicide, homelessness, incarceration, and death). Roughly 300 homeless persons, many of them with serious psychiatric illnesses, died on the streets of our capital city of Austin last year. Numbers in the previous years were similar.
Law in Texas specifically prohibits a guardian from putting an adult child in a psychiatric hospital or choosing their housing--it merely provides for a little parental oversight of the $1,999 in total assets a psychotic person on federal assistance is allowed to own at the cost of burdensome annual courtroom appearances and home visits for those parents that simply are not worth the trouble. Recently, during some estate planning, I learned that I may not even be able to legally authorize my wife to put me in a psychiatric hospital even if that is what I want to happen if I lose my insight into reality. Agreement among Texas liberals and conservatives about the supremacy of civil liberties, even for those who have lost insight, makes it is nearly impossible to get anyone into involuntary treatment until they commit a serious crime and competency must be restored for them to face punishment for their behavioral symptoms while incompetent--make that make sense! Judges and taxpayer-funded attorneys at Disability Rights Texas may have never before seen a psychotic person, yet they have more influence than parents who generally have more contact and responsibility for their disabled family member's care than anyone else. It's the flip side of your point about a psychiatrist who does not know a patient being asked to make a decision, instead putting people who do not understand serious psychiatric illness in charge of making medical decisions.
Parents and persons with active psychotic disorders are unheard and unseen at meetings where policy issues are discussed by judges, attorneys, police officers, and social workers--parents and patients are unwelcome: Parents are unwelcome, seemingly because proponents of the popular trauma and adverse childhood experience narratives have convinced policymakers that parents are the part of the problem with their "what happened to you?" rhetoric; the belief in schizophrenogenic parenting never really went away based on my experience. Extremely sick patients are unwelcome, because their thoughts are too disorganized for them to contribute in a meaningful way and nobody wants to be around them anyway--they are embarrassing (i.e., stigmatizing) to the higher functioning folks when they go to jail or don't bathe often enough. But it is the parents who have lived experience unclouded by delusions and it is the seriously ill, not high-functioning peers, who make the news and lead to discussions like this one about the need for better access to treatment.
The legal obstacles to family planning and gender-affirming care we see today are similar to the obstacles that caregivers for adults with psychotic disorders have faced for decades when trying to access psychiatric care for their loved ones. The scales of justice provide ample protections for those with insight who do not want to take medicine, leaning far too heavily toward preserving the right of those who have lost insight to remain sick. Perhaps if psychiatric treatment were more valued, additional hospitals would be built instead of prisons and more beds would become available.
I am curious how many of us who have had any type of forced treatment have been asked about our experience, what hurts and what helps? I am eternally grateful that I have had the privilege of flying under the radar of the state (any state’s) mental health system. Our country continues to live in the dark ages of how to support a person with a mental health crisis or those struggling with any mental health challenge. I think I’ll write a book.