In the Matter of K. L. (Anonymous),
Appellant. Glenn Martin, &c.,
Respondent, Attorney General of the State of New York, Intervenor-Respondent.
2004 NY Int. 14
On January 3, 1999, Kendra Webdale was pushed to her
death before an oncoming subway train by a man diagnosed with
paranoid schizophrenia who had neglected to take his prescribed
medication. Responding to this tragedy, the Legislature enacted
Mental Hygiene Law § 9.60 (Kendra's Law) (L 1999, ch 408),
thereby joining nearly 40 other states in adopting a system of
assisted outpatient treatment (AOT) pursuant to which psychiatric
patients unlikely to survive safely in the community without
In enacting the law, the Legislature found that "there are mentally ill persons who are capable of living in the community with the help of family, friends and mental health professionals, but who, without routine care and treatment, may relapse and become violent or suicidal, or require hospitalization" (L 1999, ch 408, § 2). And in mandating that certain patients comply with essential treatment pursuant to a court-ordered written treatment plan, the Legislature further found that "there are mentally ill persons who can function well in the community with supervision and treatment, but who without such assistance, will relapse and require long periods of hospitalization. * * * [S]ome mentally ill persons, because of their illness, have great difficulty taking responsibility for their own care, and often reject the outpatient treatment offered to them on a voluntary basis. Family members and caregivers often must stand by helplessly and watch their loved ones and patients decompensate" ( id.).
Studies undertaken in other jurisdictions with AOT laws
have found that outpatients subject to court orders had fewer
psychiatric admissions, spent fewer days in the hospital and had
fewer incidents of violence than outpatients without court orders
( see Mem of Off of Atty Gen, Bill Jacket, L 1999, ch 408, at 13,
citing Marvin S. Swartz et al., Can Involuntary Outpatient
In October 2000, a petition was filed seeking an order authorizing assisted outpatient treatment for respondent K.L. Respondent suffered from schizoaffective disorder, bipolar type, and had a history of psychiatric hospitalization and noncompliance with prescribed medication and treatment, as well as aggressiveness toward family members during periods of decompensation. The treatment prescribed in the proposed order included a regimen of psychiatric outpatient care, case management, blood testing, individual therapy and medication. Pursuant to the plan, respondent was required in the first instance to orally self-administer Zyprexa. If, however, he was "non-compliant with above," the plan required that he instead voluntarily submit himself to the administration of Haldol Decanoate by medical personnel.
Respondent opposed the petition, challenging the
constitutionality of Kendra's Law in a number of respects.
Before a court may issue an order for assisted
outpatient treatment, the statute requires that a hearing be held
at which a number of criteria must be established, each by clear
and convincing evidence. The court must find that (1) the
patient is at least 18 years of age; (2) the patient suffers from
a mental illness; (3) the patient is unlikely to survive safely
in the community without supervision, based on a clinical
determination; (4) the patient has a history of lack of
compliance with treatment for mental illness that has either (a)
at least twice within the last 36 months been a significant
factor in necessitating hospitalization, or receipt of services
in a forensic or other mental health unit of a correctional
facility or a local correctional facility, not including any
period during which the person was hospitalized or incarcerated
immediately preceding the filing of the petition, or (b) resulted
in one or more acts of serious violent behavior toward self or
others or threats of, or attempts at, serious physical harm to
self or others within the last 48 months, not including any
period in which the person was hospitalized or incarcerated
immediately preceding the filing of the petition; (5) the patient
is, as a result of his or her mental illness, unlikely to
voluntarily participate in the recommended treatment pursuant to
If an assisted outpatient later fails or refuses to
comply with treatment as ordered by the court; if efforts to
solicit voluntary compliance are made without success; and if in
the clinical judgment of a physician, the patient may be in need
of either involuntary admission to a hospital or immediate
observation, care and treatment pursuant to standards set forth
in the Mental Hygiene Law,
then the physician can seek the
Respondent contends that the statute violates due process because it does not require a finding of incapacity before a psychiatric patient may be ordered to comply with assisted outpatient treatment. He asks that we read such a requirement into the law in order to preserve its constitutionality.
In Rivers v Katz (, 67 NY2d 485 ), we held that a
judicial finding of incapacity to make a reasoned decision as to
one's own treatment is required before an involuntarily committed
patient may be forcibly medicated with psychotropic drugs against
his or her will. Mental Hygiene Law § 9.60, however, neither
authorizes forcible medical treatment in the first instance nor
permits it as a consequence of noncompliance with court-ordered
Nevertheless, respondent urges that, under Rivers, a showing of incapacity is required before a psychiatric patient may be ordered by a court to comply with any assisted outpatient treatment. Although respondent -- in asking us to read a requirement of incapacity into the statute -- disclaims any effort to strike down the law, such a reading would have the effect of eviscerating the legislation, inasmuch as the statute presumes that assisted outpatients are capable of actively participating in the development of their written treatment plans, and specifically requires that they be afforded an opportunity to do so ( see Mental Hygiene Law § 9.60 [i] ). Indeed, the law makes explicit that "[t]he determination by a court that a patient is in need of assisted outpatient treatment shall not be construed as or deemed to be a determination that such patient is incapacitated pursuant to article eighty-one" of the Mental Hygiene Law [governing guardianship proceedings] (Mental Hygiene Law § 9.60 [o]).
Respondent concedes that a large number of patients
potentially subject to court-ordered assisted outpatient
treatment would be ineligible for the program if a finding of
Since Mental Hygiene Law § 9.60 does not permit forced medical treatment, a showing of incapacity is not required. Rather, if the statute's existing criteria satisfy due process -- as in this case we conclude they do -- then even psychiatric patients capable of making decisions about their treatment may be constitutionally subject to its mandate.
While "[e]very human being of adult years and sound
mind has a right to determine what shall be done with his own
body" ( Schloendorff v Socy. of New York Hosp., 211 NY 125, 129
) and to "control the course of his medical treatment"
( Matter of Storar v Dillon, , 52 NY2d 363, 376 ), these
rights are not absolute. As we made clear in Rivers, the
fundamental right of mentally ill persons to refuse treatment may
have to yield to compelling state interests (67 2 at 495).
The state "has authority under its police power to protect the
community from the dangerous tendencies of some who are mentally
ill" ( Addington v Texas, 441 US 418, 426 ). Accordingly,
The restriction on a patient's freedom effected by a court order authorizing assisted outpatient treatment is minimal, inasmuch as the coercive force of the order lies solely in the compulsion generally felt by law-abiding citizens to comply with court directives. For although the Legislature has determined that the existence of such an order and its attendant supervision increases the likelihood of voluntary compliance with necessary treatment, a violation of the order, standing alone, ultimately carries no sanction. Rather, the violation, when coupled with a failure of efforts to solicit the assisted outpatient's compliance, simply triggers heightened scrutiny on the part of the physician, who must then determine whether the patient may be in need of involuntary hospitalization.
Of course, whenever a physician determines that a
patient is in need of involuntary commitment -- whether such a
determination came to be made after an assisted outpatient failed
to comply with treatment or was reached in the absence of any AOT
order at all -- the patient may be hospitalized only if the
In any event, the assisted outpatient's right to refuse
treatment is outweighed by the state's compelling interests in
both its police and parens patriae powers. Inasmuch as an AOT
order requires a specific finding by clear and convincing
evidence that the patient is in need of assisted outpatient
treatment in order to prevent a relapse or deterioration which
would be likely to result in serious harm to self or others, the
state's police power justifies the minimal restriction on the
right to refuse treatment inherent in an order that the patient
In addition, the state's parens patriae interest in providing care to its citizens who are unable to care for themselves because of mental illness is properly invoked since an AOT order requires findings that the patient is unlikely to survive safely in the community without supervision; the patient has a history of lack of compliance with treatment that has either necessitated hospitalization or resulted in acts of serious violent behavior or threats of, or attempts at, serious physical harm; the patient is unlikely to voluntarily participate in the recommended treatment plan; the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others; and it is likely that the patient will benefit from assisted outpatient treatment.
In requiring that these findings be made by clear and convincing evidence and that the assisted outpatient treatment be the least restrictive alternative, the statute's procedure for obtaining an AOT order provides all the process that is constitutionally due.
Nor does Mental Hygiene Law § 9.60 violate equal
protection by failing to require a finding of incapacity before a
Respondent next challenges the detention provisions of Kendra's Law, contending that the failure of the statute to provide for notice and a hearing prior to the temporary removal of a noncompliant patient to a hospital violates due process.
Under Mental Hygiene Law § 9.60 (n), when an assisted
outpatient who persists in the failure or refusal to comply with
court-ordered treatment may, in the clinical judgment of a
physician, be in need of involuntary hospitalization, the
physician may seek the removal of the patient to a hospital for
an examination to determine whether hospitalization is indeed
necessary. If the assisted outpatient refuses to take
medication -- or refuses to take or fails a blood test,
urinalysis, or alcohol or drug test -- as required by the court
order, the physician may consider this refusal or failure when
determining whether such an examination is needed. A
When the state seeks to deprive an individual of liberty, it must provide effective procedures to guard against an erroneous deprivation. A determination of the process that is constitutionally due thus requires a weighing of three factors: the private interest affected; the risk of erroneous deprivation through the procedures used and the probable value of other procedural safeguards; and the government's interest ( see Mathews v Eldridge, 424 US 319, 335 ).
While we disagree with the Appellate Division's
determination that the involuntary detention of a psychiatric
patient for up to 72 hours does not constitute a substantial
deprivation of liberty, we nevertheless conclude that the
patient's significant liberty interest is outweighed by the other
Mathews factors. In the context of the entire statutory scheme,
the risk of an erroneous deprivation pending the limited period
during which an examination must be undertaken to determine
In addition, the state's interest in immediately
removing from the streets noncompliant patients previously found
to be, as a result of their noncompliance, at risk of a relapse
or deterioration likely to result in serious harm to themselves
or others is quite strong. The state has a further interest in
warding off the longer periods of hospitalization that, as the
Legislature has found, tend to accompany relapse or
deterioration. The statute advances this goal by enabling a
physician to personally examine the patient at a hospital so as
to determine whether the patient, through noncompliance, has
created a need for inpatient treatment that the patient cannot
Respondent contends that a comprehensive psychiatric examination can be easily performed in less than 72 hours after removal. But since the temporary detention permitted by the statute comports with due process, it is not for us to determine whether the 72-hour limit is ideal, or necessary, or wise. As long as the time period satisfies constitutional requirements -- which it does -- it is not for this Court to substitute its judgment for that of the Legislature.
Finally, we find no violation of the constitutional
prohibition against unreasonable searches and seizures ( see US
Const, 4th Amend; NY Const, art I, § 12) in the statute's failure
to specify that a physician must have probable cause or
reasonable grounds to believe that a noncompliant assisted
outpatient is in need of involuntary hospitalization before he or
she may seek the patient's removal. It is readily apparent that
the requirement that a determination that a patient may need care
and treatment must be reached in the "clinical judgment" of a
physician necessarily contemplates that the determination will be
Accordingly, the order of the Appellate Division should be affirmed, without costs.
1 Under Mental Hygiene Law § 9.27, a person may be involuntarily admitted to a hospital upon the certification of two physicians when he or she is in need of involuntary care and treatment, defined as having "a mental illness for which care and treatment as a patient in a hospital is essential to such person's welfare and whose judgment is so impaired that he is unable to understand the need for such care and treatment" (Mental Hygiene Law § 9.01). Under Mental Hygiene Law §§ 9.39 and 9.40, persons in need of immediate observation, care and treatment may be admitted to a hospital on an emergency basis when they have a mental illness which is likely to result in serious harm to themselves or others, defined as a "substantial risk of physical harm to himself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he is dangerous to himself, or * * * a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 , ).
2 Inasmuch as the statute does not -- and could not, absent a showing of incapacity -- authorize the forcible administration of psychotropic drugs, any AOT order purporting to contain such a direction would exceed the authority of the law. Respondent's treatment plan contained no such illegal direction. Any persistent refusal to comply with the directive that he voluntarily submit to the administration of Haldol would not have resulted in his being forcibly medicated. Rather, the sole consequence would have been that a physician might then have determined that respondent may have been in need of involuntary hospitalization. In that event, respondent could have been temporarily removed to a hospital for examination ( see Mental Hygiene Law § 9.60 [n]).