The Law and Practice Relating to Private - William Spinks

8/9/2019 The Law and Practice Relating to Private - William Spinks

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OUTPATIENT COMMITMENTA Therapeutic Jurisprudence Analysis

Bruce J. Winick University of Miami School of Law

This article analyzes the legal and therapeutic jurisprudence considerations raised byoutpatient commitment. Although older forms of outpatient commitment have bothlegal and therapeutic advantages, preventive outpatient commitment raises seriouslegal problems and potential antitherapeutic consequences that may outweigh itsclaimed therapeutic value. As a result, alternatives are proposed, including wideravailability of community treatment and outreach and case management services,assertive community treatment, police and mental health court diversion programs,and creative uses of advanced directive instruments and behavioral contracting.

Proposals also are made for how preventive outpatient commitment can be appliedmore therapeutically, including hearings that accord patients a sense of procedural

justice and techniques designed to motivate individuals facing such hearings toagree to accept treatment voluntarily.

Can those with mental illness who do not satisfy the criteria for civilcommitment be ordered to accept treatment in the community? An emergingmodel in mental health law, known as preventive commitment by its opponents(Stefan, 1987) and assisted community treatment by its defenders (Amador &Johanson, 2000; Torrey & Zdanowicz, 2001) seeks to do precisely this. This isperhaps the most controversial current issue in mental health law (Swartz &

Monahan, 2001). This article analyzes this question, commenting briefly on theconstitutional issues it raises, and providing a therapeutic jurisprudence analysisof this legal model and of how it should be applied, if it is to be used at all.

This emerging model is the legal manifestation of the shift in the locus of carefor those with mental illness from the hospital to the community (Klerman, 1979).Prior to the 1950s the state mental hospital played the most important role in thecare and treatment of people with serious mental disorder. In the 1940s, manyWorld War II veterans returned from their service in the European or Pacifictheatres suffering from mental illness. Their numbers swelled the census of publicmental hospitals, which by the mid-1950s had reached a peak population of about

550,000 (Winick, 1977). The mid-1950s marked the introduction and the begin-ning of the widespread application of psychotropic medication. Until then, hos-pitals could offer little in the way of treatment for what then was known aspsychosis, with the result that the prevailing model of the mental hospital was alarge fortress-like institution that held many thousands of patients and functionedas little more than a human warehouse where most patients spent the rest of theirlives. The introduction of the new drugs led to a significant shift in treatmentphilosophy and allowed patients who were stabilized and maintained on medica-tion, to live in the community, with friends or relatives, in community residentialfacilities, or on their own, some able to resume work and some receiving public

Professor Winick would like to thank Josh Goldstein for his helpful research assistance.Correspondence concerning this article should be addressed to Bruce J. Winick, University of

Miami School of Law, 1311 Miller Drive, Room G477, Coral Gables, Florida 33146. E-mail:[email protected]

Psychology, Public Policy, and Law2003, Vol. 9, No. 1/2, 107–144

Copyright 2003 by the American Psychological Association, Inc.1076-8971/03/$12.00 DOI: 10.1037/1076-8971.9.1-2.107

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support (Winick, 1997c, chap. 1). These drugs facilitated the birth of communitypsychiatry. With severe symptomatology held largely in check, patients becameamenable to psychotherapy, occupational therapy, and a variety of social inter-ventions that could better be provided as effectively in the community and did not

require hospitalization. As a result, patients, stabilized on medication, began to bedischarged to the community.Both economic and legal pressures also fostered this process of moving

patients from the hospital to the community. State hospitalization was expensivecompared to treatment delivered in the community. Moreover, states typicallyabsorbed 100% of the costs of patients institutionalized in state hospitals, whereasthe cost of providing care in the community typically was split between the stateand the locality (Watnik, 2001). In addition, services provided to patients in statemental hospitals were ineligible for federal reimbursement under Medicaid, butservices delivered in the community could qualify for such reimbursement (Wat-nik, 2001). As a result, by discharging state hospital patients to the communities,the state could avoid bearing 100% of the costs of state hospitalization, andinstead would be required to absorb only a portion of the costs of caring for thesepatients in the community, the remainder of which would be borne by the federalgovernment and the localities. Facing shrinking state budgets, the states thereforehad a strong economic incentive to adopt a policy of deinstitutionalization.

The civil rights struggle of the 1960s heightened concern for the civil libertiesof a number of previously disadvantaged populations, not only racial minorities,but also women, prisoners, and eventually mental patients (Winick, 1999b). Civilrights organizations devoted to the rights of mental patients launched litigationprograms designed to limit psychiatric hospitalization and to reform the sorrystate of the understaffed and underfunded mental hospitals of the time. Therhetoric of the times described those subjected to civil commitment as “prisonersof psychiatry” (Ennis, 1972). We shifted from a medical model of civil commit-ment, in which psychiatrists and other clinicians largely decided hospitalizationissues without effective review by the courts, to a legal model, largely driven bythe Constitution, that focused on patient rights, significantly constrained commit-ment power, and provided for more elaborate procedural hearings for involuntaryhospitalization (Winick, 1999b, in press-a).

Deinstitutionalization, the name given to the practice emerging in the late1960s and coming to fruition in the 1970s and 1980s, of significantly reducing thepopulation of state mental hospitals by the widespread release of patients to thecommunity (Durham, 1989; Klerman, 1977), was a reflection of these forces andthe shift in our model of commitment. A confluence of economic, clinical, andlegal pressures pushed strongly in the direction of limiting hospitalization. Thestate hospital became merely one point on the continuum of care, providinglargely short-term inpatient services for acute patients who, following a period of stabilization on medication, could be discharged to community programs (Winick,1997b, chap. 4).

Yet, these patients, although much improved, were not well (Klerman, 1977).Despite not needing inpatient hospitalization, they had continued clinical, social,

and housing needs in the community, and suf ficient funds never were madeavailable to provide for necessary community services. Many patients congre-gated in urban areas in which single room occupancy hotels and other low-pricedhousing was located. Many became homeless (Perlin, 1991, 1996). Without

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services, many deteriorated and required rehospitalization (American PsychiatricAssociation, 1987, p. 15). Deinstitutionalization thus was a mixed blessing forpatients, producing increased liberty, but bringing about the stress and sufferingof living in communities ill-equipped to care for their needs. It also produced a

revolving-door syndrome, in which patients would rotate between the hospital andthe community, sometimes discontinuing necessary medication, deteriorating, andrequiring rehospitalization.

Outpatient commitment emerged as an approach which required resistantpatients to accept treatment in the community, thereby relieving their sufferingand sometimes reducing their potential for danger to themselves and others.Designed to prevent rehospitalization, such court-ordered treatment can properlybe referred to as preventive outpatient commitment, and I shall use that term here.This model widens the social net, expanding the category of people with mentalillness who can be the subject of state coercion. Court-ordered participation intreatment in the community is more preventive commitment than it is assistedcommunity treatment.

Is this new approach constitutional? Is it wise? To the extent that court-ordered community treatment is used, how can it be structured to increase itstherapeutic potential? How can it be administered by judges and other courtpersonnel, by lawyers, and by mental health clinicians so as to allow it to achieveits promise as an instrument of assisted community treatment?

The first section of this article briefly describes the therapeutic jurisprudenceframework, an interdisciplinary approach to legal scholarship and law reform thatexplores the role of legal practices on mental health and emotional well-being.The second section distinguishes this new type of outpatient commitment fromtwo long-existing legal models of outpatient commitment. These existing versionsof outpatient commitment are conditional release from involuntary hospitalizationand community treatment ordered by the civil commitment court for patients whootherwise satisfy the criteria for involuntary hospitalization, but whose needs canbe met adequately through the provision of treatment in the community. It isuseful to distinguish these two types of outpatient commitment from its newerversion, which authorizes court-ordered community treatment for those who donot satisfy the criteria for civil commitment. This section describes the first twotypes of outpatient commitment, which I shall refer to as conditional release andleast restrictive alternative (LRA) community treatment, and comments on their

therapeutic value.The third section describes the newer type of outpatient commitment, which

I shall refer to as preventive outpatient commitment, and briefly examines theconstitutional issues it raises. The fourth section then conducts a therapeutic

jurisprudence analysis of preventive outpatient commitment. It suggests that whileit might present therapeutic advantages for some patients, these may be out-weighed by the counter-therapeutic effects produced by this new legal model.

The fifth section discusses alternative approaches to preventive outpatientcommitment, including assertive community treatment, mental health courts, andthe use of advance directive instruments in this context. The sixth section

examines how jurisdictions that adopt preventive outpatient commitment canapply it in ways that reduce its antitherapeutic effects and maximize its therapeu-tic potential. It makes suggestions about how outpatient commitment hearingsshould be held, and describes a creative form of behavioral contracting conducted

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in the shadow of outpatient commitment that is being used in New York City.Section eight contains a brief conclusion.

What Is Therapeutic Jurisprudence?

Therapeutic jurisprudence is an interdisciplinary approach to legal scholarshipand law reform that sees law itself as a therapeutic agent (Wexler & Winick, 1991,1996; Winick, 1997b). Legal rules, legal practices, and the way legal actors (suchas judges, lawyers, and expert witnesses testifying in court) play their rolesimpose consequences on the mental health and emotional well-being of thoseaffected. Therapeutic jurisprudence calls for the study of these consequences withthe tools of the behavioral sciences to improve our understanding of law and howit applies to reshape it to minimize its antitherapeutic effects and maximize itstherapeutic potential. It is interdisciplinary in that it brings insights from psychol-ogy and the social sciences to bear on legal questions, and it is empirical in thatit calls for the testing of hypotheses concerning how the law functions and can beimproved.

Therapeutic jurisprudence suggests that law should value psychologicalhealth, should strive to avoid imposing antitherapeutic consequences wheneverpossible, and when consistent with other values served by law, should attempt tobring about healing and wellness. Unlike a medical model, it does not privilegetherapeutic values over others. Rather, it seeks to ascertain whether law’s anti-therapeutic effects can be reduced and its therapeutic effects enhanced withoutsubordinating due process and other justice values (Wexler & Winick, 1991,1996; Winick, 1997a). Therapeutic jurisprudence does not suggest that therapeu-tic considerations should subordinate other considerations. Law often serves otherends that are equally or more important. Therapeutic jurisprudence seeks conver-gence between therapeutic and other values, and suggests that such convergenceis the path to true law reform (Winick, 1997b, 1997a).

When therapeutic and other values served by law conflict, therapeutic juris-prudence cannot resolve the conflict. Rather, therapeutic jurisprudence helps tomake this conflict more visible and sharpens the issues for further debate.Sometimes therapeutic considerations may strongly outweigh other values, andthus point the way to law reform. Although the weighing of therapeutic againstother values may be a task that some might describe as weighing apples and

oranges, it is possible to weigh differing values, even those thought of asincommensurable (Kress, 1999). When therapeutic and other normative values donot converge, creative solutions can often be found that permit maximizingbalancing among such values with a minimization of conflict (Kress, 1999;Winick, 2000).

Therapeutic jurisprudence therefore is a scholarly approach for bringingmental health insights into the development and reshaping of law (Petrucci,Winick, & Wexler, 2002). It evolved out of work of Wexler and Winick in mentalhealth law (Wexler & Winick, 1991), and has emerged as one of the mostimportant influences in the field (Perlin, 2000). It has since spread across the legal

landscape, emerging as a mental health approach to law generally (Wexler &Winick, 1996). Moreover, therapeutic jurisprudence has become increasinglyinternational in character (Tompkins & Carson, 1999, 2000). Therapeutic juris-prudence thus looks at legal rules, legal practices, and the roles of legal actors to

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assess their therapeutic impact and to determine how they can be revamped toincrease therapeutic outcomes.

Therapeutic jurisprudence seeks to avoid the excess paternalism of the med-ical model. However, it also seeks to go beyond the legal model’s exclusive focus

on legal rights, often to the neglect of patient needs (Winick, in press-a). Thisarticle accordingly examines some of the key legal and therapeutic questionsraised by preventive outpatient commitment, seeking to find a convergence of legal and therapeutic values or, when they conflict, an accommodation of themthat strikes the appropriate balance.

Two Preexisting Models of Outpatient Commitment: ConditionalRelease and LRA Outpatient Treatment

At the outset, it is useful to distinguish three separate types of outpatientcommitment. The first is conditional release, occurring when a patient previouslycommitted to a mental hospital obtains release therefrom on the basis thathospitalization no longer is necessary, but continued treatment in the communityis still needed (Perlin, 1994). In this variation, an individual who previously hasbeen subjected to civil commitment seeks release and agrees to accept treatmentin the community as a condition thereof. Analogous to parole from prison, thisform of release is conditional upon the patient’s willingness to accept treatment inthe community. As with parole, when violation of parole conditions can result inits revocation, and re-imprisonment, violation of the conditions of release mayresult in rehospitalization.

The second type, LRA community treatment, occurs when an individualsought to be committed on an involuntary basis is able to defeat the state’s attemptto impose civil commitment on the ground that, although he or she is mentally illand otherwise satisfies commitment criteria, the government’s interest can beaccomplished through less restrictive treatment delivered at a community mentalhealth center or other community facility (Perlin, 1994). This may includetreatment in a residential community setting, partial hospitalization, or treatmentdelivered on an outpatient basis. All of which are less restrictive than full inpatienthospitalization. If an LRA community treatment option exists, even though theindividual otherwise satisfies commitment criteria, the court will not order hos-pitalization, but instead will order that the individual accept community treatment.

Should the individual fail to comply, the court, perhaps following a hearing on theissue, can order inpatient hospitalization.

The first two types of outpatient commitment are noncontroversial. They eachpreserve patient liberty by permitting necessary treatment to be delivered on a lessrestrictive basis in the community. Conditional release and LRA communitytreatment as an alternative to inpatient hospitalization accommodate both theinterest in preserving the individual’s liberty from unnecessary hospitalization andthe interest in meeting his or her continued mental health needs. Because thepatient satisfies civil commitment criteria (i.e., is mentally ill and dangerous toself and others or has become incompetent to engage in rational decision making

about hospitalization and treatment and is gravely disabled), the state constitu-tionally may exercise authority over him in ways in which he otherwise would befree to decide for himself. However, because treatment in the community wouldsatisfy the state’s interest in protecting the individual and the community from



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harm, inpatient hospitalization would constitute an unnecessary deprivation of liberty. Mandating treatment in the community therefore is justified in thesecircumstances as an alternative means of accomplishing the state’s compellinginterests that is less restrictive of liberty than inpatient hospitalization.

Both conditional release and LRA community treatment also provide impor-tant therapeutic opportunities. Those who previously were committed to mentalhospitals and those seeking to resist involuntary hospitalization will be motivatedto attempt to convince courts and hospital of ficials that they will participateeffectively in treatment delivered in the community, and that full hospitalizationtherefore is not needed. Because their willingness to accept community treatmentcan avoid the continuation of undesired hospitalization or the initiation of suchhospitalization, they may be more likely to come to see participation in commu-nity treatment as the most desirable option open to them. If their mental illnessdoes not prevent them from engaging in this kind of instrumental thinking, and if they are treated in the judicial process with dignity and respect and given a senseof voice and validation, they may experience their decision to accept outpatienttreatment to be voluntary rather than coerced (Winick, 1997d; 1999b). Eventhough the civil commitment process will provide legal pressure that may produceor help to produce the individual’s decision to accept community treatment, if heor she is treated in these ways, the literature on the psychology of procedural

justice (Tyler, 1990, 1992; Winick, 1999b), suggests that he or she will be moresatisfied with the process that led to court-ordered treatment and more willing tocomply with it. Moreover, research on what makes people feel coerced suggeststhat such a patient will be more likely to experience the decision as voluntaryrather than coerced (Lidz et al., 1995; Monahan et al., 1996; Monahan et al., 1999;Winick, 1999b). This research also shows that the degree of perceived coercion isstrongly dependent on the kinds of pressures the individual was subjected to.Negative pressures, such as threats and force, make individuals feel coerced,whereas positive pressures, such as persuasion and inducement, do not (Monahanet al., 1999). Although the cognitive impairment that some of these patients maysuffer from as a result of their mental illness may reduce their ability to experiencethe psychological value of procedural justice (Sydeman, Cascardi, Poythress, &Rittenband, 1997), empirical research suggests that many and probably most willbe able to experience these benefits (Cascardi, Poythress, & Hall, 2000; Greer,O’Regan, & Traverso, 1996; Susman, 1996).

To the extent that the individual under conditional release or an LRAcommunity treatment order experiences his or her choice in favor of outpatienttreatment in the community to be voluntary, this can have significant positiveeffects on treatment outcome (Cascardi et al., 2000; Tyler, 1992; Winick, 1999b).The literature on the psychology of procedural justice relates closely to theliterature on what makes people feel that their choices have been coerced ratherthan made voluntarily, and suggests the need to restructure judicial hearings in theconditional release and LRA community treatment process so as to increasepatient satisfaction, compliance, and feelings of voluntary choice (Winick,1999b). A body of theoretical work on the psychology of choice suggests that

people perform more effectively and with greater motivation when they feel thatthey have chosen voluntarily to do something, and perform less effectively withpoor motivation and sometimes with psychological reactance when they feelcoerced into doing it (Winick, 1997c, chap. 17; Winick, 1999b, chap. 17).

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Principles of cognitive and social psychology, including the goal-setting effect,expectancy theory, intrinsic motivation, the psychology of commitment, andcognitive dissonance in general support the positive value of choice and thenegative effects of perceived coercion.

Properly understood, therefore, the legal processes used to determine condi-tional release and LRA community treatment can set in motion psychologicalforces that spark patient motivation to accept such treatment and help to make itmore effective. These processes should be administered in ways that comport withthe psychology of procedural justice and, rather than threatening individuals withlegal compulsion, judges and others involved in these processes should see theirroles as persuading or inducing the individual to accept needed communitytreatment. For patients who accept such treatment, the conditional release andLRA community treatment processes can be seen, as Elbogin and Tomkins (2000)suggest, as uses of the legal system to promote patient mental health andcommunity safety through mechanisms of contingency management that makecreative use of cognitive behavioral principles to foster patient motivation, com-pliance, and treatment success. In short, the conditional release and LRA com-munity treatment contexts can be seen as fertile ground for therapeutic jurispru-dence proposals and empirical analysis. These two preexisting types of outpatientcommitment thus are supported both by legal principles valuing patient libertyand autonomy and by principles of therapeutic jurisprudence, which can offermuch to improve their functioning.

Preventive Outpatient Commitment: A Brief Constitutional Analysis

The third type of outpatient commitment, the one that has raised greatcontroversy, is actually a form of preventive commitment (Stefan, 1987). I referto this type of commitment as preventive outpatient commitment. Under thisversion, the individual fails to meet criteria for civil commitment, but uponsatisfaction of a lesser standard, may be ordered by a court to accept treatment inthe community in order to avoid his or her predicted deterioration if untreated, andeventual satisfaction of commitment criteria. For example, under New York ’sKendra’s law, an individual over 18 years of age who suffers from a mental illnessmay be committed to what is called “assisted outpatient treatment” if fourconditions are satisfied. First, he or she must be unlikely to survive safely in thecommunity without supervision. Second, he or she must have a history of noncompliance with treatment that has resulted in one or more seriously violentacts, threats of violence, or attempted violence toward self or others within theprevious 48 months or which has resulted in a hospitalization or the receipt of mental health services at a correctional facility at least twice within the past 36months. Third, the individual must be unlikely to participate voluntarily intreatment. Finally, the individual must be likely to benefit from treatment andneeds it in order to prevent behavior likely to result in serious harm (New York Mental Hygiene Law §§ 9.60 –.61, 1996).

Under preventive outpatient commitment, the individual fails to meet criteria

for civil commitment and therefore may not be hospitalized involuntarily, but thestatute authorizes court-imposed treatment in the community upon satisfaction of a lesser standard than would be required for hospital commitment. The justifica-tion for this type of outpatient commitment is that, without court-ordered treat-



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ment, the individual will refuse voluntarily to engage in treatment, will deteriorateas a result, and ultimately will qualify for involuntary hospitalization. This

justification has special force for revolving-door patients, those who undergorepeated cycles of involuntary hospitalization, discharge following treatment

which has decreased symptomatology to the point that they no longer satisfycommitment criteria, a period in which they reside in the community withoutneeded treatment, a consequent resumption of severe symptoms, and eventualrehospitalization. Highly publicized acts of violence by untreated people withmental illness in the community have fueled the political pressure for such laws.However, these laws seem largely directed at a perceived gap in the mental healthsystem created by the tightening of civil commitment criteria, and the policy andpractice of deinstitutionalization, all of which have produced large numbers of patients residing in the community rather than in the hospital who need on-goingtreatment but often resist it.

Because by definition, this type of outpatient commitment involves court-ordered community treatment for patients who do not satisfy the criteria forinvoluntary hospitalization, the question arises as to whether this deprivation of liberty is constitutional. The answer may depend upon the nature of the coercivecommunity treatment that is authorized. If intrusive treatment such as psycho-tropic medication is authorized, then this form of outpatient treatment wouldintrude upon the qualified constitutional right, which has been recognized by thecourts, to refuse mental health treatment (Winick, 1997c).

Evolving legal principles would seem to require that involuntary psychotropicmedication be permitted only in the presence of compelling necessity, with theexception of medication administered within a prison, for which a somewhatlesser standard would need to be satisfied. If the asserted justification for court-ordered medication in the community is grounded in the government’s policepower interest in protecting the public from the individual’s violent conduct whennot taking medication, the government should be required to demonstrate that theindividual is presently dangerous, that the predicted violence is imminent, that themedication sought to be administered is medically appropriate, and that no lessintrusive means would suf fice (Winick, 1997c, chaps. 15–16). If the state seeks to

justify court-ordered medication on parens patriae grounds, it would need to showthat the individual was in fact incompetent to make treatment decisions on hisown behalf, that the medication sought to be administered was medically appro-

priate and in his best interests, that significant harm to the individual otherwisewould be imminent, and that there were no less restrictive alternative means of protecting his best interests or of preventing harm (Winick, 1997c, chaps. 15–16).

In short, outpatient commitment involving forced medication would need tosatisfy strict constitutional scrutiny, requiring satisfaction of essentially the samestandards required to justify involuntary hospitalization and the imposition of intrusive mental health treatment. But if these standards are satisfied, there wouldbe no need for a statute authorizing preventive outpatient commitment. If civilcommitment criteria were satisfied, but the government’s police power or parens patriae power interests can be fully met through court-ordered medication in the

community, then a court either can require such medication as a less restrictivealternative to commitment or find that commitment is warranted but grant animmediate conditional release that requires the individual to accept medication inthe community. In other words, the first two kinds of outpatient commitment

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described earlier as being non-controversial could be utilized without resorting tothe more controversial preventive outpatient commitment.

What characterizes this third form of outpatient commitment is that it canapply even when the individual does not satisfy existing criteria for civil com-

mitment. However, because involuntary imposition of intrusive psychotropicmedication itself would be permissible only if criteria parallel to commitmentcriteria were satisfied, outpatient commitment involving forced medication shouldbe constitutionally impermissible based upon satisfaction of a lower standard.Without satisfying the more stringent criteria for civil commitment and forcedintrusive treatment, such outpatient commitment would constitute an unjustifiedinfringement on bodily privacy, mental integrity, and individual autonomy, andtherefore would be unconstitutional (Winick, 1997c).

Advocates for preventive outpatient commitment defend it by pointing to therevolving-door syndrome, in which committed patients restored to a suf ficient

degree of functioning to permit discharge to the community are released, stoppedtaking their medication, decompensate as a result, and either become dangerous toothers or gravely disabled and unable to care for themselves. It is clear that theessential feature of outpatient commitment that this argument contemplates is therequirement that these patients take psychotropic medication that is necessary totreat their disorder. Other types of mental health treatment, unless accompaniedby psychotropic medication, would be unlikely to halt the deterioration in theircondition experienced by patients who have discontinued their medication.

Let us assume that such medication is medically appropriate for the patientand would succeed in preventing the patient’s deterioration and eventual rehos-pitalization in the future once that deterioration progressed to a level that wouldrender the patient eligible for involuntary hospitalization under the state’s com-mitment criteria. One problem with this argument, of course, is the dif ficulty of predicting the future. Will the patient discontinue medication? Will this producea severe decompensation? Will the patient continue to refuse medication even if severe symptoms return, or will he or she then become willing to resumemedication? Even if not, will this render the patient dangerous to self or others orincompetent and gravely disabled? Given the well-known problems with theaccuracy of clinical prediction generally (Winick, 2000),1 should we be willing to

deprive the patient of the significant liberty interest in avoiding unwanted psy-chotropic medication ( Riggins v. Nevada, 1992; Washington v. Harper , 1990)based on the clinical prediction of these future possibilities? Moreover, even if wewere reasonably confident of making these predictions about what might happenmonths in the future, would avoidance of future harm, that is not fairly immediate,serve as a suf ficient justification for this significant intrusion into personal liberty?

Not only do these drugs intrude on bodily integrity and individual autonomyin serious ways, but their direct and side effects also affect mental processes in

1

For a discussion of the inadequacies of clinical prediction, see Winick (2000). Althoughclinical prediction may be only slightly better than chance, the recent emergence of a variety of risk assessment instruments, when used in combination with clinical assessment, may significantlyincrease our ability to predict future dangerousness and perhaps other legally relevant states(Monahan et al., 2001; Winick, 2000).



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ways that are incapable of being resisted (Winick, 1997c, chap. 5).2 These effectson mental processes are so serious that courts and commentators have recognizedthat such forced medication infringes on interests protected by the First Amend-ment, which safeguards the integrity of mental processes from such direct and

significant interference by the government absent a demonstration of compellingnecessity ( Bee v. Greaves, 1984; Winick, 1989; 1997c, chaps. 5, 15). To be justified, invasions of the First Amendment require the most heightened level of judicial scrutiny, including a demonstration by the government that the harmsought to be avoided constitutes a clear and present danger, one that is bothserious and imminent (Winick, 1997c, chaps. 5, 15). If preventive outpatientcommitment includes forced medication that infringes the First Amendment, ittherefore would seem unconstitutional because the patient deterioration andrehospitalization that it seeks to avoid are, by definition, not yet imminent.

To the extent that the justification for preventive outpatient commitment

invokes the police power interest in protecting the community, this justification isproblematic because it seeks to validate a significant deprivation of liberty basedon a prediction of dangerousness that is remote rather than fairly immediate. AsStefan (1987) states, this constitutes preventive treatment in order to avoid futurepreventive detention. The same logic would justify depriving persons diagnosedas HIV positive of their liberty or requiring them to take sex-drive-reducinghormones in order to avoid the risk of sexually transmitted diseases. Some suchindividuals may not engage in safe sex, and may deceive their sex partners abouttheir condition. But this would constitute the crime of reckless endangerment, andwe generally would rely upon the criminal law to deter such conduct, rather than

using preventive detention, quarantine, or forced treatment for this purpose.Defenders of preventive outpatient commitment may seek to distinguish thisexample on the basis that a diagnosis of HIV positive does not produce cognitiveimpairment, rendering the individual incompetent to engage in rational decisionmaking or unable to control his conduct. However, although mental illnesssometimes does produce such cognitive impairment, patients who are so cogni-tively impaired as to be rendered incompetent to engage in rational decision-making or unable to control their conduct, would satisfy the statutory criteria forcivil commitment. Preventive outpatient commitment, it should be remembered,by definition involves patients who do not satisfy commitment criteria, but who

are subjected to court-ordered treatment on the basis that, without such treatment,they are likely in the future to satisfy commitment criteria.To the extent that the justification for preventive outpatient commitment is

grounded in the government’s parens patriae interest, its problem is that itauthorizes intrusive medication on a paternalistic basis for individuals who are notthen incompetent to decide on treatment for themselves. The same logic would

justify requiring cancer patients to submit to surgery or chemotherapy that theywish to reject on the basis that the doctor thinks it will cure their cancer, and if they wait for a spontaneous remission, such treatment will likely be too late. A

2 The side effects produced by the new generation of antipsychotic drugs such as Risperdol andZiprazidone would seem less serious and more capable of being resisted than those of the olderforms of antipsychotic medication. Nevertheless, even these newer drugs pose significant intrusionsinto bodily and mental privacy, thereby requiring strict constitutional scrutiny.

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physician’s judgment that such cancer treatment is in the patient’s best interestsand may save his or her life may well be accurate. But we do not insist upon suchtreatment for patients who remain competent to engage in rational decisionmaking. Instead, we defer to individual autonomy, allowing patients to make such

important decisions for themselves even though they may turn out to be wrong(Winick, 1991a). Because the mental patients sought to be subjected to preventiveoutpatient commitment remain competent at the point at which the interventionoccurs, we similarly should defer to their choices concerning intrusive treatment.

Defenders of preventive outpatient commitment contend that the decisionmaking ability of those with mental illness is impaired and that their disorderproduces lack of insight on their part, justifying a paternalistic intervention(Amador & Johanson, 2000; Amador & Shivar, 2000). Lack of insight, however,is not the same as incompetence. Many people lack insight, perhaps includingmany cancer patients, particularly when asked to engage in decision makingduring the stress of their illness. Heavy smokers may lack insight concerning thedangers of tobacco, and often are in denial concerning the risks that their behaviorcauses to their health, but we do not require that they discontinue smoking eventhough the risks to their health may be great. Instead, we leave it up to them anddo our best to educate them about the risks and to persuade them to discontinuetheir unhealthy behavior. Even if they have been diagnosed with lung cancer, wedo not apply legal coercion to make them stop smoking although continuing tosmoke may be likely to hasten their death.

Unless their lack of insight rises to the level of incompetency, we similarlyshould not impose our judgment on mental patients concerning their own treat-ment, at least when the treatment sought to be imposed is intrusive and the

justification for doing so is grounded in the state’s parens patriae power. Al-though lack of insight concerning whether one is mentally ill or is in need of mental health treatment has sometimes been treated as a component of incompe-tency for purposes of treatment decision making (Appelbaum & Grisso, 1995;Grisso & Appelbaum, 1995), this is controversial (Saks, 1991; Slobogin, 1996).There may be rational reasons for denying one’s mental illness or for wishing toresist intrusive mental health treatment, and too often clinicians whose treatmentrecommendations have been rejected by their patients have equated their refusalwith lack of insight and incompetency. In any case, lack of insight, even if itshould constitute a component of the clinical assessment of incompetency, cannot

and should not be equated with legal incompetency (Saks, 1991; Slobogin, 1996;Winick, 1997c, chap. 18).

The courts have consistently recognized that incompetency is a prerequisitefor exercise of the state’s parens patriae power as a justification for the invol-untary administration of intrusive treatment such as psychotropic medication(Winick, 1997c, chap. 15). Preventive outpatient commitment seeks to invoke the parens patriae power to justify forced treatment for individuals who, althoughthey may be impaired by their mental illness and may lack insight into theircondition and the treatments that could help them, are not then incompetent. Assuch, to the extent that it involves forced psychotropic medication, such outpatient

commitment would exceed the historic limits on the parens patriae power. If werelax those limits to permit paternalistic interventions with intrusive treatment onthe basis that, without such intervention the individual would become incompetentin the future, we would justify a significantly expanded scope for government



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paternalism that would greatly diminish our commitment to the value of individ-ual autonomy, a value that is deeply ingrained in our constitutional history andtradition (Winick, 1992, 1997c, chap. 11).

Defenders of preventive outpatient commitment might respond to these con-

stitutional arguments by pointing out that the intrusion presented by outpatientcommitment is a lesser one than total hospitalization. If intrusive psychotropicmedication is mandated, however, the intrusion involved is suf ficiently seriousthat a demonstration of current dangerousness or present incompetency should berequired (Winick, 1997c, chap. 15). If psychotropic medication is not mandated,but the patient is required only to submit to verbal psychotherapy, counseling, oreducation, then this form of outpatient commitment would be less objectionable.Because these verbal types of treatment are relatively unintrusive and are capableof being resisted by unwilling patients (Winick, 1997c, chap. 3), the standardrequired to mandate them would be a lesser one than for more intrusive psych-

otropic drug treatment (Winick, 1997c, chap. 15). Because such mandated non-intrusive treatment would seem rationally related to the legitimate interest inavoiding future danger or incapacity and grave disability, the lesser intrusion onliberty involved may be legally permissible.

Perhaps to avoid the constitutional dif ficulties presented by preventive out-patient commitment that requires psychotropic medication, New York ’s Kendra’slaw and several other outpatient commitment statutes do not authorize forcedmedication (Watnik, 2001), and an American Psychiatric Association task forcereport that recommends outpatient commitment would authorize forced medica-tion only when the individual is incompetent (Gerbasi, Bonnie, & Binder, 2000).If preventive outpatient commitment thus were limited to requiring the patient toattend appointments at community programs and submit to a form of verbaltherapy concerning his condition, although this would involve an infringement onliberty, such an infringement would seem to be insuf ficiently intrusive to renderit unconstitutional. Indeed, this is the basis upon which the New York Trial Courtshave rejected a constitutional challenge to Kendra’s Law, distinguishing right torefuse medication cases on the ground that the outpatient commitment law doesnot involve forcible administration of medication and does not impose any formof punishment on patients who refuse to comply with their court-ordered treat-

ment plans (Matter of Urcuyo, 2000). The treatment plan that patients are orderedby the court to comply with in New York will often include medication, but if thepatient fails to comply with this requirement, no steps are taken to force medi-cation or punish the patient for his noncompliance (Hoge & Grottole, 2000:Watnik, 2001). Patients may be misled into believing that they will be forced totake their drugs, rehospitalize, or otherwise punished for their noncompliance, butin fact they would be wrong. The New York statute thus may avoid unconstitu-tionality, but it does so through a subterfuge.

Even if constitutional, is this New York practice wise? Is it ethical todeceive patients into believing that they are legally required to take medica-

tion in the community when the law technically imposes no such requirement(Hoge & Grottole, 2000)? What is the impact of such deception on treatmentoutcome in the long run? These issues are addressed in the section thatfollows.

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Balancing the Therapeutic and Antitherapeutic Consequences of Preventive Outpatient Commitment

An important consideration in assessing the wisdom of preventive outpatientcommitment is whether it brings about the benefits claimed by its proponents, andwhether those benefits are outweighed by countervailing antitherapeutic conse-quences, both for the patients who are committed and for others who might bedeterred from accepting voluntary services by the risk of outpatient commitment.Would coerced outpatient treatment produce better treatment outcomes thanleaving treatment decision making to the individual once commitment criteriawere no longer satisfied? These questions call for a therapeutic jurisprudenceassessment of preventive outpatient commitment.

Let us assume, as the third section concludes, that preventive outpatientcommitment may not constitutionally include court-ordered intrusive psycho-tropic medication. If so, and if preventive outpatient commitment therefore is

limited to verbal forms of treatment, then the question is whether compelledverbal therapy would produce better treatment outcomes than allowing individualchoice in the matter. If such verbal therapy includes misleading the patient intobelieving that he is legally required to take medication even though this is not true,then the question is whether compelled verbal therapy that includes such decep-tion would produce better treatment outcomes than allowing individual choicewithout such deception.

In analyzing these questions, let us assume that psychotropic medication isessential if the patient is to remain relatively free of severe symptomatology, asit may be in the case of the overwhelming majority of patients with schizophrenia,

major affective depression, and bipolar disorder (Winick, 1997c, chap. 5). Whenpreventive outpatient commitment is limited to psychotherapy, counseling, andeducation, it can, of course, be used to try to persuade the individual about thevalue of taking medication. Persuading the individual voluntarily to chooseappropriate medication can increase intrinsic motivation and treatment compli-ance in ways that help to bring about more effective treatment responses. But thismay be true only to the extent that the individual does not feel coerced intoaccepting medication but experiences the decision to submit to such medication asvoluntary. Positive pressures to accept medication, such as persuasion and in-ducement, are less likely to produce feelings of coercion, but negative pressures,

such as the threat of legal compulsion that preventive outpatient commitmentrepresents, are more likely to make people feel coerced. The perception of coercion may present antitherapeutic consequences, producing a counterproduc-tive psychological reactance (Brehm & Brehm, 1981; Winick, 1997d). On theother hand, if the patient experiences the choice in favor of accepting medicationas voluntary, the literature on the psychology of choice would suggest that suchtreatment will be more ef ficacious (Winick, 1997c, chap. 17, 1999b).

To the extent that individuals are coerced into attending verbal treatmentprograms, their experience of coercion may make it unlikely that they will bepersuaded to accept needed medication. People generally do not like to be

coerced, and may experience being coerced for their own good as an affront totheir dignity. They may respond with anger, resentment, and even de fiance. If required to attend such a treatment program, they may simply go through themotions without deriving any real benefit. Psychotherapy and other kinds of



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verbal counseling, to be successful, require a high degree of motivation andcooperation on the part of the patient (Winick, 1997c, chap. 3). Coercion is morelikely to inspire distrust of the therapist, resentment, and lack of genuinecooperation.

By contrast, making treatment widely available on a voluntary basis may bemore likely to produce positive responses, provided that the patient is aware of theavailability of services and how to qualify for them, can afford such services, andhas the ability to reach the place where services are provided without dif ficulty.Too often, mental health services in the community are unavailable or the patientis unaware of them or lacks the funds, the ability or initiative to take advantageof them. This can be remedied, however, by making services more widelyavailable in the community without cost, and by placing an emphasis on patientoutreach and education. Assertive community treatment, in which outreach work-ers in mobile vans seek out people who are in need of mental health services(Dennis & Monahan, 1996), represents an aggressive attempt to “sell” theseservices to consumers. If successful at wooing the patient into treatment, thesevoluntary approaches may be more likely to induce patient cooperation andmotivation, thereby increasing the possibility that the person can be persuaded of the value of taking needed medication.

Even if the patient is required to attend a treatment program, the chances thathe or she will be persuaded to take needed medication will be increased to theextent that the program treats the individual with dignity and respect, demon-strates that it has his best interests at heart, and accords him a sense of voice andvalidation. In other words, even though such treatment is imposed coercively, if the clinicians in the program treat the patient in accordance with principles of procedural justice, the patient may still experience a choice in favor of medicationto have been voluntarily made, and thereby avoid the antitherapeutic conse-quences of coercion and experience the psychological benefits of choice (Winick,1999b). To achieve this goal, however, the program should emphasize persuasionrather than pressure, threats, or other heavy-handed techniques.

For these reasons, preventive outpatient commitment that is restricted toverbal therapy approaches should not involve practices that deceive or misleadpatients into believing that if they don’t take their medication, the court will makethem do so, as occurs in New York and apparently some other jurisdictions as well(Borum et al., 1999; Hoge & Grottole, 2000; Perlin, 2003; Stefan, 1987). Such

deception can be corrosive to the trust and confidence that may be essential forpatients to realize the psychological advantages of being accorded procedural

justice. It also can make patients feel coerced, engaging a form of psychologicalreactance that can produce attitudes that interfere with successful treatment ratherthan facilitating it. Being treated with dignity and respect as equal citizensrequires that the government not mislead people, even if it is for their own good(Winick, 1999b). Outpatient commitment that uses deception in this way topressure the individual to accept medication thus can be antitherapeutic, and raisesserious ethical concerns (Hoge & Grottole, 2000).

Preventive outpatient commitment processes and programs that are careful to

apply the principles of procedural justice thus may help to mitigate the perceptionof coercion that court-ordered treatment can produce, but not if they use decep-tion. However, the avoidance of the negative effects of coercion and the achieve-ment of the therapeutic advantages of choice may be more likely to occur with the

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less controversial forms of outpatient commitment discussed in the second sec-tion, or with attempts at persuasion that involve no judicial compulsion whatso-ever. The two earlier types of outpatient commitment, conditional release andLRA community treatment, if properly administered, can have therapeutic advan-

tages.Can preventive outpatient commitment produce similar therapeutic advan-tages, and does it create antitherapeutic consequences? Some commentators claimthat preventive commitment produces positive therapeutic consequences for thepatient (Kress, 2000; Torrey & Zdanowicz, 2001). They cite lower hospital costs,smaller hospital stays, less violence, and less victimization (Kress, 2000), but it isnot at all clear that these count as therapeutic advantages. Kress (2000) alsosuggests that some patients may be set back permanently in their treatment by thegaps in the periods of medication administration that occur when they neglect totake their drugs, and if this is so, this would count as a serious antitherapeuticeffect. Torrey and Zdanowicz (2001) contend that preventive commitment can beseen as a form of assisted treatment that improves treatment compliance andreduces hospital readmission. This is necessary, they assert, because many re-volving door patients lack awareness of their illness or insight into the need formedication as a result of biologically based cognitive deficits (Amador & Johan-son, 2000; Torrey & Zdanowicz, 2001)

Whether these contentions are true, however, is an empirical question thatremains unresolved. Although many clinicians involved in outpatient commitmentprovide anecdotal support for these contentions, the empirical data are conflicting.A recent review of the studies conducted by the RAND Corporation found a lack of evidence to support the conclusion that a judicial order improves compliancewith mental health treatment (Ridgeley, Borum, & Petrila, 2001). Almost all of the studies have serious methodological problems (Borum, et al., 1999). The onlystudies that do not have serious methodological flaws, one from North Carolinaand one from New York, reached different conclusions.

The North Carolina study found few significant differences between thosesubjected to outpatient commitment and a control group not so subjected, but whoreceived case management services and intensive outpatient treatment (Swartz,Swanson, Hiday, & Wagner, 2001). However, sustained outpatient commitmentaccompanied by intensive outpatient treatment was found to produce differencesthat were significant. It resulted in fewer hospital admissions and shorter hospitalstays, and made patients more treatment compliant and less likely to be violent orvictimized. Whether this effect was due to outpatient commitment or to the extraattention paid to patients by case managers, however, remains unclear (Stein &Diamond, 2000). In contrast to the North Carolina study, an empirical study of aNew York City outpatient commitment pilot program comparing outpatientcommitment with enhanced services to enhanced services alone, found no statis-tically significant differences on all major outcome measures (Steadman, Gounis,Dennis, Hopper, Roche, Swartz, & Robbins, 2001). More empirical research isneeded to clarify these issues.

In any case, against these potentially therapeutic effects of preventive outpa-

tient commitment must be weighed the anti therapeutic effects of coercion andremoval of the opportunity for voluntary choice. Removing voluntary choice frompeople concerning important decisions about personal matters is an affront to theirhuman dignity and personhood in ways that often reflect a demeaning and



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pernicious form of paternalism. As discussed earlier, people often function poorlywhen coerced and respond with a negative psychological reactance (Winick,1997c, chap. 17; 1997d). Voluntary choice, on the other hand, can trigger anumber of psychological mechanisms that help to bring about treatment success

(Winick, 1997c, chap. 17; Winick, 1999b). Moreover, outpatient treatment basedon the government’s parens patriae power can require hearings resulting inincompetency labeling that itself can produce negative psychological effects(Winick, 1995). In addition, preventive outpatient commitment might have theeffect of undermining the delivery of potentially more effective voluntary mentalhealth services by making consumers concerned about avoiding coercion, reluc-tant to become involved with the mental health system (Allan & Smith, 2001;Monahan et al., 2001; Stein & Diamond, 2000). The coercive intervention of outpatient commitment may make many with mental illness deny their illnessrather than accept the fact that they have a problem and take steps to dealeffectively with it.

For all of these reasons, the antitherapeutic effects of using coercion anddeception instead of voluntary choice free of deception, may outweigh thepositive therapeutic value of administering psychotropic medication to those whoneed it or of requiring verbal therapy designed to persuade them to accept suchmedication. While it is true that under a system relying on voluntary choice, somepatients will choose against needed treatment, decompensate, and require rehos-pitalization, many more probably can be persuaded or induced to accept neededtreatment, and those who choose in favor of such treatment are likely to respondbetter to it. Coercion and the threat of coercion can be strongly antitherapeutic.Many people with mental illness have been denied the ability to be self-deter-mining in a variety of aspects of their lives, both within the hospital and outsideof it. The sense of powerlessness that this can produce can impair effectivefunctioning generally, sap motivation, and induce a form of clinical depression(Winick, 1992; 1995; 1997c; chap. 15). An important goal of our mental healthdelivery system is the restoration of the patient to as high a degree of functionalability as he may be capable of so as to facilitate social and occupational life inthe community. This requires the ability to make important choices and to learnto accept responsibility for them. While respecting individual autonomy for thosewhose mental illness has not rendered them incompetent to make rational deci-sions may produce harm, the psychological costs of extending the coercion of the

mental health system to those who still retain competency, may be more serious.

Alternatives to Preventive Outpatient Commitment

The real choice here is not between a medical model approach that mandatescoercive outpatient treatment or a legal model that values legal rights overtherapeutic needs. A therapeutic jurisprudence model for civil commitment thatseeks convergence between legal and therapeutic interests, or to strike an appro-priate balance between them when they conflict, has been emerging (Winick, inpress). The therapeutic jurisprudence model attempts to reshape legal practices in

order to increase therapeutic outcomes while respecting individual rights. It usespsychological theory to predict how alternative legal arrangements might bringabout therapeutic or countertherapeutic effects, and in the process frames issuesfor empirical examination.

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In view of the legal dif ficulties presented by preventive outpatient commit-ment that are discussed in the fourth section, and the antitherapeutic consequencesthat it may pose discussed in the fifth section, therapeutic jurisprudence wouldexplore the possibility of using alternative approaches. Are there alternative

approaches that can accomplish the therapeutic objectives that preventive outpa-tient commitment seeks to bring about that avoid the legal dif ficulties andantitherapeutic consequences that this newer form of outpatient commitmentthreatens to produce? Although preventive outpatient commitment may producetherapeutic advantages for some patients who otherwise would experience in-creased suffering and a repeated pattern of re-hospitalization, an important ques-tion is whether these advantages could be obtained through more creative use of non-coercive approaches. The existing empirical research suggests that for pre-ventive outpatient commitment to work, at a minimum, it must be accompaniedby at least 6 months of enhanced outpatient treatment services (Swartz et al.,2001; Borum et al., 1999). Such enhanced treatment services should be madefreely available in the community on an as-needed basis for those who voluntarilychoose them, and we should encourage those who need these services to acceptthem.

In many respects, the problem of individuals in the community suffering frommental illness who remain untreated represents a failure of the mental healthservice delivery and social service systems (Goldkamp & Irons-Guynn, 2000). Italso represents a problem of fragmentation in the mental health delivery system,characterized by the uncoordinated and noncollaborative way in which hospitaland community services typically relate to one another (Stein & Diamond, 2000).A combination of inadequate levels of community treatment resources, the frag-mentation of service delivery, and the inability of social service and treatmentagencies to locate many people in need of mental health services, to engage themin treatment, stabilize them, and succeed in maintaining their consistent partici-pation in a treatment program, helps to explain the problems that have given riseto the perceived need for preventive outpatient commitment. These failures of thecommunity mental health service delivery system should be remedied through theprovision of added resources and innovative social service approaches. As analternative to court-ordered treatment, we should substantially increase theseresources, and creative approaches should be used to persuade individuals in needof services to utilize them. The most optimistic study of outpatient commitment

suggests that outpatient commitment is effective only when accompanied byintense services for a period in excess of 6 months (Swartz et al., 2001).Outpatient commitment without the provision of such intense services, therefore,may not be effective. The danger exists that legislatures may adopt outpatientcommitment without providing the necessary funding for the services that mightbe essential to its effectiveness (Stein & Diamond, 2000).

A variety of creative approaches using education, persuasion, and inducementto accept such services can be attempted and compared empirically with ap-proaches using coercive outpatient commitment in order to increase our under-standing of which approach would produce better treatment outcomes. Only if

these creative alternative approaches are shown to be ineffective, should weconsider the more coercive approach of outpatient commitment. More research,therefore, is needed before outpatient commitment should be adopted.

In any case, given the therapeutic value of allowing voluntary choice and the



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potentially antitherapeutic consequences of coercion, it would seem highly ques-tionable to make intensive treatment services available only for those subjected tocoercive outpatient commitment, denying them to those who might be willing toaccept them on a voluntary basis. Indeed, from a therapeutic jurisprudence as well

as an economic perspective, this would seem to be a misallocation of treatmentresources. Public funding of treatment services (indeed of all types of services) isinevitably limited. It therefore would seem to make more sense to allocate scarcetreatment resources to those who would be predicted to respond more effectivelyto them, namely those who choose them voluntarily.3 To the extent that preven-tive outpatient commitment concentrates resources on those who are resistant totreatment, with the result that they are unavailable for those with mental illness inthe community who wish to obtain treatment services but cannot do so, it wouldbe both antitherapeutic and inef ficient. We should recall that even the NorthCarolina studies, which suggest the existence of a degree of therapeutic value for

patients subjected to preventive outpatient commitment, show that therapeuticgains are not achieved until the patient has been subjected to such commitment fora period in excess of 6 months involving the delivery of intense treatment servicesthat include several therapeutic patient contacts per week (Swartz et al., 2001).We therefore are less likely to obtain significant therapeutic gains for our limitedmental health funds by focusing on these resistant patients rather than thosewilling to accept services voluntarily. Moreover, the per-patient expenditurenecessary for the intense treatment resources required to be delivered for a periodin excess of 6 months before preventive outpatient commitment may producetherapeutic value suggests that it is a large portion of the treatment dollar that wewould be misallocating to these resistant patients. In short, we probably couldhelp 10 or 20 times more people in need of mental health services by foregoingpreventive outpatient commitment in favor of a service delivery approach thatmakes treatment and social services more readily available on an affordable basisand more user-friendly.

Of course, some individuals with severe mental illness will remain uncon-cerned about accepting needed treatment voluntarily and will deteriorate as aresult. For some of these, the suffering they will endure as a consequence mayultimately lead them to change their minds and accept services voluntarily inresponse to persuasion or inducement, perhaps when their condition has becomemore serious. Some will not, however, and many of these will run into criminaldif ficulties, being arrested for minor offenses such as trespassing, wandering intraf fic, or committing petty nuisance offenses such as urinating on someone’slawn. Arrest, for such people, is inappropriate because the real problem is notcriminality, but untreated mental illness. Rather, they should be subjected toassertive community treatment (Dennis & Monahan, 1996; Stein & Diamond,

3 I do not, of course, suggest that this cost effectiveness principle should justify the abolitionof inpatient involuntary hospitalization on the ground that the money could better be spent onpatients willing to accept services. Those who are dangerous to others or incompetent to make

hospitalization decisions for themselves should be subjected to civil commitment to protect thecommunity and themselves even though they do not voluntarily seek these services. When patientsdo not satisfy commitment criteria, however, given the scarce resources available for communitytreatment, allocation of these resources based upon the patient’s motivation for treatment wouldseem to make sense.

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2000) in which they are persuaded and induced to accept needed services. Jail isan especially inappropriate place for people with serious mental illness. Few jailshave adequate mental health resources (Winick, 1997b), and the pressures andstress of detention in a typically overcrowded facility will predictably exacerbate

their condition. Police should receive training concerning how to deal withpersons with mental illness in the community, and be instructed to bring offendersto community mental health centers or other outpatient clinics instead of to jailwhen mental illness is the problem. (see Steadman, Morris, & Dennis, 1995)(discussing various models of jail diversion).

For those who find themselves in the criminal process as a result of commit-ting minor offenses such as these, we should attempt to divert them from thatprocess at an early point through emerging creative judicial approaches such asmental health courts (Fritzler, 2003; Goldkamp & Irons-Guynn, 2000; Lurigio,Watson, Luchins, & Hanrahan, 2001; Monahan, Bonnie, Appelbaum, Hyde,

Steadman & Swartz, 2001; Stiles et al., 2001), or for those who are charged withpossession of illegal drugs, drug treatment courts (Hora, in press; Hora, Schma, &Rosenthal, 1999; Winick & Wexler, in press). These specialized courts areillustrative of a number of emerging judicial models, increasingly known as“problem-solving courts,” that use principles of therapeutic jurisprudence toaddress various psychosocial problems and to facilitate treatment and rehabilita-tion (Casey & Rottman, 2000; Rottman & Casey, 1999; Task Force on Thera-peutic Jurisprudence, 2000; Winick, in press-b). The judge in these courts playsa special role as a member of the treatment team, attempting to facilitate theindividual’s motivation for treatment and to increase treatment compliancethrough a variety of techniques, including behavioral contracting, periodic report-ing to the court to monitor treatment progress, praise and other forms of encour-agement for treatment success, and sometimes the application of sanctions forlack of treatment compliance (Winick & Wexler, in press).

Mental health courts are designed to deal with people arrested for nonviolentmisdemeanors when mental illness rather than criminality seems to be the sourceof the problem (Fritzler, 2003; Goldkamp & Irons-Guynn, 2000; Lurigio et al.,2001; Petrila et al., 2001). These who are involved in these courts are the sameindividuals who are the target of preventive outpatient commitment. Withouttreatment, their condition has deteriorated, and they have been arrested andcharged with a petty offense.4 Instead of disposing of the criminal charges throughtrial or guilty plea, the mental health court judge attempts to persuade theindividual to accept diversion from the criminal court in exchange for an agree-ment to participate in community treatment. Mental health courts involve a teamapproach in which representatives from justice and treatment agencies assist the

judge in screening offenders to determine whether they would present a risk of

4 It must be acknowledged that some individuals who otherwise would be subject to arrest anda period of highly antitherapeutic jail detention could avoid arrest through the provision of outpatientcommitment. The avoidance of such antitherapeutic detention certainly would count as a therapeutic

benefit of outpatient commitment. However, outpatient commitment will not necessarily avoid arrestand antitherapeutic detention and certainly will not avoid these consequences for all people withmental illness in the community who might commit minor offenses leading to their arrest. Mentalhealth court, therefore, will continue to serve as an important therapeutic approach even in jurisdictions that have outpatient commitment.



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violence if released to the community, in devising appropriate treatment plans,and in supervising and monitoring the individual’s performance in treatment. Themental health court judge functions as part of a mental health team that decideswhether the individual has treatment needs and can be safely released to the

community. The team formulates a treatment plan, and a court-employed casemanager and court monitor track the individual’s participation in the treatmentprogram, and submit periodic reports to the judge concerning his or her progress.Participants are required to report to the court periodically so that the judge canmonitor treatment compliance, and additional status review hearings are held onan as-needed basis.

The judge-participant interaction at these hearings is an essential componentof the mental health court process. Participants are encouraged to speak abouttheir experiences and problems in treatment, and the hearing becomes an exercisein creative problem solving in which the judge and other members of thetreatment team seek to resolve dif ficulties and overcome obstacles. Not only doesthe individual benefit from these sessions, but so does the audience in thecourtroom, which typically includes other mental health court participants invarious stages of treatment and processing, who may be experiencing similarproblems.

After completion of a suf ficient course of treatment in which the individualhas demonstrated consistent performance and responsibility, the mental healthcourt judge dismisses the criminal charges. In some jurisdictions, mental healthcourts require the defendant to plead guilty to the charges as a condition forparticipation in the mental health court program. When this occurs, adjudicationoften is withheld pending successful completion of the mental health courtprocess, at which time the judge dismisses the charges. In other jurisdictions, thecriminal charges remain unresolved while the defendant is diverted to a mentalhealth court, and the charges are later dismissed if the defendant’s progress intreatment is deemed satisfactory. In other variations, the prosecutor agrees to adeferred prosecution or deferred sentence to allow the defendant to participate ina mental health court. However structured, the mental health court proceeds on theassumption that, for at least some defendants charged with minor, non-violentoffenses, the problem is more a product of mental illness than of criminality, andthat facilitating the offender’s access to and engagement in mental health treat-ment constitutes a more effective response to the underlying problem than would

criminal conviction and sentence.Mental health courts represent a multi-agency and systemwide response to the

problem of untreated mental illness that has much to commend it. The individualfrequently is unaware of available treatment resources in the community and of how to access these resources. The mental health court judge and the othermembers of the treatment team play an important social work function in pro-viding information to the individual concerning these resources and how to usethem, and in facilitating their acceptance into the treatment program and on-goingparticipation in it.

An important function of the mental health court judge is to motivate the

individual to accept needed treatment. To play this role well, the judge needs todevelop enhanced interpersonal skills and awareness of a variety of psychologicaltechniques that can help the judge to persuade the individual to accept treatmentand motivate him or her to participate effectively in it (Petrucci, 2002). These

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skills include the ability to convey empathy and respect, to communicate effec-tively with the individual, to listen to what the individual has to say, therebyfulfilling the individual’s need for voice and validation, to earn the individual’strust and confidence, and to engage in motivational interviewing and various other

techniques designed to encourage the individual to accept treatment and complywith it. The individual in the mental health court can either accept such diversionto treatment or face criminal charges, and the judge can increase the potential thatthe individual will experience the choice as voluntary and non-coercive bymaking it clear that the choice is up to him and by treating him with respect anddignity and with fairness and in good faith (Hora, in press; Winick, 1999a, inpress-b; Winick & Wexler, in press). The mental health court judge should usepositive pressures, such as persuasion and inducement, and avoid negative pres-sures, such as the threat of legal compulsion. The mental health court model thuscan be a creative and potentially more effective mechanism for motivating theindividual to accept needed treatment than would be coercive outpatient commit-ment. The ef ficacy of the mental health court has certainly not as yet beenestablished empirically, but anecdotal reports and preliminary research suggeststhat it is a promising development (Petrila et al., 2001).

Mental health courts, of course, are not without their critics (e.g., NationalMental Health Association, [2001; warning that mental health court could lead tofurther criminalization of those with mental illness, impose greater stigma uponthem, and result in a fragmentation of services, with those in the criminal justiceprocess receiving priority access to needed mental health services]; BazelonCenter for Mental Health Law [2002; criticizing mental health court as coercive,ineffective when adequate services are not provided, sometimes violative of dueprocess, and sometimes leading to the arrest of people who otherwise would nothave been arrested]; and the National Council on Disability Members and Staff [2000; Mental Health Courts can be net widening]). These concerns are poten-tially serious, but if mental health courts are properly administered, they may beavoided. There is no evidence that mental health courts have been used to widenthe social net by leading to the arrest of people for petty offenses who otherwisewould not have been arrested. Nor should mental health courts be used in thisway. Indeed, police should be given better training on how to deal with those withmental illness, and should be encouraged, rather than to arrest them, to divert themfrom jail by bringing them to appropriate community treatment service facilities

or link them up to assertive community treatment in the community (see Stead-man, Morris & Dennis, [1995; discussing various models of jail diversion]). If mental health courts are used only to divert those with mental illness who arearrested for petty offenses for which they would have been arrested anyway, itwill not result in additional criminalization or stigmatization of those with mentalillness.

In addition, mental health courts need not result in a fragmentation in theservice delivery system. We should increase the level of services in the commu-nity generally so that those who voluntarily seek mental health services can haveeasy access to them. If this is done, as it should be, mental health courts will not

result in affording those in the criminal justice system a superior access to mentalhealth services.

Another potential criticism of mental health courts is that they can be appliedin ways that diminish due process protections. The decision to participate in



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mental health court should be a voluntary and competent one, and some withmental illness may not possess the requisite competence (Lurigio et al., 2001).When the question of the defendant’s competence to accept treatment is raised, aninquiry into competence may be necessary, although the standard for competence

to assent to treatment should be a less stringent one than the standard forcompetence to object thereto (Winick, 1991b). Counsel can play an important rolein assuring that the individual is suf ficiently competent to make the decision toaccept diversion, that he or she knows the consequences of accepting or rejectingsuch diversion, and that the decision is made voluntarily rather than throughcoercion (cf. Reisig, 2002, discussing role of counsel in drug treatment courts).

The mental health court process also provides interesting therapeutic oppor-tunities for both prosecutors and defense lawyers to help motivate the mentally illindividual charged with a petty offense to accept needed treatment in the com-munity. Prosecutors in petty offense cases can make creative use of plea bargain-ing to encourage the acceptance of treatment, agreeing to withhold adjudicationand to dismiss charges if the defendant successfully completes a treatmentprogram. They also can use deferred prosecution or deferred sentencing toencourage such treatment. Even in cases in which the offender declines to acceptdiversion and elects to face his charges, criminal court judges can sentenceconvicted defendants to probation on condition that they accept an appropriaterehabilitation program in the community, including the receipt of treatment formental illness or substance abuse. Criminal defense lawyers can encourage theirclients to accept diversion to community treatment. When they have been chargedwith offenses that are more serious than the petty misdemeanors for which mentalhealth courts typically are reserved, these lawyers can encourage their clients toaccept rehabilitation when needed, and can use their post-offense rehabilitativeefforts as a ground for seeking probation, a reduction in sentence, or an advan-tageous plea bargain (Winick, 1999a). Attorneys representing mentally ill clientsin the criminal process, in civil commitment, or in outpatient commitment, orcounseling them at the point of hospital release or conditional release, can havean important impact in educating them about their problems and encouragingthem to seek appropriate services. This is particularly true for attorneys who haveenhanced interpersonal skills and apply a therapeutic jurisprudence/preventivelaw model of lawyering (Stolle, Wexler, & Winick, 2000; Winick, Wexler, &Dauer, 1999).

An important tool that can be used by such attorneys is the advance directiveinstrument (Monahan et al., 2001; Stavis, 1999; Winick, 1996, 1998). Often aclient who has been stabilized on medication and has received a period of inpatient hospitalization or outpatient treatment will have a degree of insightconcerning his or her problem, the relationship between the discontinuation of medication and the exacerbation of symptoms, and the relationship betweentaking medication and the control of severe symptomatology. An attorney whohas gained the trust and confidence of the client can use a variety of interviewingand counseling skills (Winick, 1999a), including motivational interviewing andother mechanisms for dealing with resistance (Birgden, 2002; Miller & Rollnick,

2002) designed to counsel the client about treatment. A client who understands thevalue of treatment and has responded effectively to it should be counseled aboutthe possibility of entering into an advance directive instrument that authorizesappropriate treatment or even voluntary hospital admission in the future, should

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the patient become incompetent or upon the occurrence of some other specifiedcondition, such as a degree of deterioration or lack of insight as determined by atrusted relative, friend, or clinician (Gallagher, 1998). Under these circumstances,such a client also can consider the execution of a health care proxy that designates

a trusted friend or relative to make decisions on the client’s behalf concerninghospitalization and treatment upon the occurrence of a condition precedent.Legal recognition of the enforceability of advance directive instruments in the

mental health context is growing and is supported by several considerations(Winick, 1996, 1998). They promote autonomy values, and can prevent the formalresolution of hospitalization and treatment disputes (at least in parens patriaecontexts). In addition, the use of such instruments may have significant therapeu-tic value (Miller, 1998; Winick, 1996). The ability to make future decisions abouttreatment can reduce stress and anxiety that may be debilitating. Planning for thefuture can be therapeutic, and can help people with mental illness to confront theirproblems and deal more effectively with them, taking steps to prevent their illnessfrom getting out of hand and requiring hospitalization. Taking responsibility fordecisions vitally affecting them can be empowering for those with mental illness,with predictable beneficial effects, providing an opportunity to counter the infan-tilization that institutionalization sometimes produces. The very process of think-ing through and preparing for how future mental health decisions will be made inthe case of incompetence can allow patients to take precautions that may preventthe exacerbation of their illness, and to set goals that might help to achieve them(Winick, 1996). Being able to deal with such important issues and to do soeffectively may also produce in the patient feelings of self-esteem and self-ef ficacy which can increase competence and effective functioning. Moreover, byavoiding future formal determinations of incompetency, the use of these instru-ments can avoid the antitherapeutic effects of incompetency labeling (Winick,1995) and government coercion (Winick, 1997d). The choice of future treatmentby the patient is likely to increase patient commitment to the treatment chosen andcompliance with it. The use of advance directive instruments in this context thuscan serve as a therapeutically advantageous alternative to coercive outpatientcommitment. Psychiatric advance directives, of course, are not without dif ficulty.They may pose a number of legal, ethical, clinical, and logistical challenges. Theyare a fairly new technique, and many issues still remain to be resolved concerningtheir use and legality. A significant problem, and one that patients should be madeaware of, is that clinicians may frequently ignore such directives when they feelit is medically appropriate to do so. For an extensive discussion of some of thesedif ficulties, existing in the context of advance directives for end-of-life decision-making as well as in the psychiatric context, see Winick (1998).

A variety of techniques that are less coercive than preventive outpatientcommitment therefore should be considered. We should make adequate treatmentservices widely available in the community, and should publicize their availabilitymore ef ficiently to those who need such services. Individuals in need of servicesfrequently cannot afford them or do not know how to obtain them, how to obtainthe necessary transportation, and how to budget their time so that they can make

and keep appointments for such services. Mental health services provided in thecommunity can prevent more expensive inpatient hospitalization, and thereforeshould be widely and easily available to all who need them and are interested inobtaining them, without regard to their ability to pay. Moreover, we should



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provide education and skills training designed to ameliorate the logistical obsta-cles to needed treatment, including transportation and case management services.

Instead of relying on court-imposed coercion, we should make these programsavailable on a voluntary basis and use creative approaches to persuade, encourage,

and even induce patients to accept them. Assertive community treatment usingmobile vans staffed by clinicians who aggressively seek out individuals in need of mental health services and attempt to convince them to accept them (Dennis &Monahan, 1996; Stein & Diamond, 2000), holds great promise and should beexpanded. Assertive community treatment uses aggressive tactics to attempt topersuade individuals to accept mental health services. A serious criticism of thisapproach is that the tactics used verge o

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The Law and Practice Relating to Private - William Spinks

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