Mandated Treatment in the Community for People with Mental Disorders: Treating People without Their Consent Has Always Been the Defining Human Rights Issue in Mental Health Law

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Introduction

Requiring adherence to community-based mental health treatment is now the single most contested human rights issue in mental health law and policy. Although forty United States jurisdictions have statutes nominally authorizing outpatient commitment (a legal order to adhere to prescribed community treatment), until recently few states made substantial use of these laws. With the 1999 enactment in New York State of "Kendra's Law" and the 2003 enactment in California of "Laura's Law," both statutes named after young women killed by people with untreated mental illness, national interest in outpatient commitment has soared. Many states are now experiencing a take-no-prisoners battle between advocates for "assisted treatment" (the more benign term preferred by the proponents of outpatient commitment) and advocates against "leash laws" (the less benign term used by its opponents).

In this paper we first describe the mental health policy context within which coerced community treatment has arisen. Second, we provide an account of the current uses of outpatient commitment and other forms of "mandated community treatment" and how these practices came to be. Finally, we place mandated treatment within the larger conceptual framework of health care quality recently proposed by the Institute of Medicine (IOM), a framework more conducive to reasoned policy deliberation than that often reflected in the current polarized debate.

The Context of Coercion in the Community

Almost every U.S. community has a subpopulation of mentally ill people who manifest complex problems in multiple areas of life and who come into contact with a variety of public agencies and institutions-including community mental health centers, public hospitals, substance abuse treatment programs, civil and criminal courts, police, jails and prisons, emergency medical facilities, social welfare agencies, and public housing authorities. The growth of this population, often termed "revolving door patients," is attributable to increasingly restrictive criteria for involuntary inpatient commitment, limited availability of effective inpatient care, a paucity of effective community-based services, and a lack of other needed community supports.

Many of these patients derive little benefit from available treatment programs because they often do not adhere to medication regimens or keep scheduled appointments, may abuse substances, and tend to live in impoverished, dangerous environments with inadequate social supports.

Much of the debate on treatment mandates, or the use of coercion in treatment, assumes that treatment mandates represent a coordinated policy to tighten social controls on people with serious mental illness. It is more useful to understand these mandates as a set of convergent responses to the common challenges facing the diverse agencies and institutions serving this population. While many critics cogently argue that the scarcity of appropriate treatment and rehabilitation/ habilitation resources is the fundamental cause of poor treatment outcomes, poor adherence to even scarce treatment programs is equally problematic. It is not surprising that diverse agencies and institutions have developed similar strategies to address the common problem of treatment non-adherence. However, it is also important to recognize that treatment mandates arise from quite different contexts.

The Varieties of Mandated Community Treatment

Treating people with mental disorders without their consent has always been the defining human rights issue in mental health law. (This same historical debate has been largely absent in substance abuse treatment, however, and the ubiquitous use of coercion in substance abuse treatment is largely uncontested.) For centuries, unwanted treatment for mental disorder took place in a closed institution--a mental hospital. What has changed is that now the locus of involuntary treatment has shifted to the open community. …