Download Letter and Position Paper in Support of

State Senator Charles T. McIlhinney Jr.
187 Main Capitol
Senate Box 203010
Harrisburg, PA 17120-3010
Dear Senator McIlhinney Jr.:
I am writing in support of Pennsylvania State Senate Bill 226, which would establish a
procedure by which family members and mental health professionals could petition a
court to order community-based assisted outpatient treatment for individuals with a
documented history of mental illness. Modeled after New York’s Kendra’s Law, SB 226
would allow courts to intervene at a stage far earlier than is allowed under the law, which
calls for the presence of a “clear and present danger.”
This bill represents a significant step in our state’s ongoing battle against debilitating
mental illness. Under the current standard, the state is oftentimes powerless to intervene
in mandating treatment until a significant event, such as suicide or murder, has already
occurred. Such a laissez faire approach is wholly unacceptable, especially in the wake of
the tragedy at Virginia Tech, in which Seung-Hui Cho, a mentally ill student who was not
receiving treatment, was responsible for the deaths of 32 fellow students. Pennsylvania
must learn from this tragedy and understand that failing to take proactive measures in
assisting the severely mentally ill population puts our community in peril.
The passage of this law would not only benefit greater society but also those suffering
from debilitating mental illnesses as well. Such a law would help to save those
susceptible to self-inflicted or outward displays of violence from regrettable actions
spawned by mental illness. In an age in which science and experience have demonstrated
the devastating effects of mental illnesses such as schizophrenia and bipolar disorder, it is
past time for Pennsylvania’s legislature to install provisions designed to protect this
vulnerable segment of the population.
The time to act is now. We must not stand idle and wait for the next preventable suicide
or the next Virginia Tech massacre to work toward a remedy that has been proven to be
beneficial in other states. The success of New York’s Kendra’s Law provides tangible
evidence of how this law can work affectively for our own state. With all of these factors
in mind, I urge you to consider voting for Senate Bill 226. Enclosed is a formal report
further outlining my position in favor of SB 226.
Sincerely,
_______________
Background on Kendra’s Law and SB 226
Pennsylvania’s Senate Bill 226 resides in the Public Health and Welfare
Committee chaired by State Senator Ed Erickson (R-26). This bill would establish a
procedure by which family members and mental health professionals could petition a
court to mandate community-based assisted outpatient treatment for individuals with a
documented history of mental illness. Bucks County Senator Stewart Greenleaf has
proposed adding this mandatory treatment clause to Pennsylvania law since 2002
(Ciavaglia 2007). SB 226 is based heavily on New York’s Kendra’s Law, formally New
York Mental Hygiene Law § 9.60. This law grants courts the authority to order certain
mentally ill individuals to comply with treatment while living in the community (A Guide
to Kendra’s Law). Both Kendra’s Law and the proposed SB 226 are designed to affect
the small minority of people with severe mental illness such as schizophrenia and bipolar
disorder and a history of hospitalizations, incarcerations, or violence (Castello 2007).
Under Pennsylvania’s 31-year-old involuntary commitment law, treatment is
dependent on proving that an individual poses a “clear and present danger.” SB 226
would do away with such strict standards, as it allows civil courts to order treatment plans
for individuals that meet criteria significantly softer than the existing law demands
(Snook 2007). Instead, it would allow courts to intervene before a person is deemed to be
a direct threat to the community or to oneself.
Kendra’s Law, the law after which SB 226 was modeled, was inspired by the
tragic circumstances surrounding the death of Kendra Webdale. In January 1999, Ms.
Webdale was pushed to her death in front of a Manhattan subway train by twenty-nine
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year old Andrew Goldstein, a troubled man with a history of severe schizophrenia who
failed to take his prescribed medications (Watnik 2001). New York’s Kendra’s Law was
initiated in November 1999 and provides specific criteria for individuals to be eligible for
court-ordered treatment plans. Individuals must be unlikely to survive safely in the
community without supervision and have a history of lack of compliance with treatment
that includes hospitalizations and/or has resulted in acts of serious violent behavior.
Furthermore, individuals must be unlikely to voluntarily participate in recommended
treatment, have a clear need for assisted outpatient treatment, and be likely to benefit
from treatment. A court order mandating assisted outpatient treatment is handed down
after a court finds that all of the criteria are satisfied and that the treatment directed by the
order is the least restrictive alternative available (Assisted Outpatient Treatment 2005).
Pennsylvania’s SB 226 mirrors the criteria for assisted outpatient treatment set
forth in Kendra’s Law. Under the proposed SB 226, patients must be 18 or older and
suffering from a mental illness that makes it unlikely they will survive safely in the
community without supervision. Patients must have a history of noncompliance with
mental illness treatment, be unlikely to voluntarily participate in a recommended
treatment plan, and be likely to benefit from treatment. Specifically, patients must have
had a significant event that necessitated hospitalization or treatment at least twice in the
preceding 36 months or engaged in violent behaviors toward self or others within the
previous 48 months. Finally, the patient’s treatment history and current behavior must
suggest the patient needs treatment to prevent relapse or deterioration, which would
likely present a clear and present danger of harm to self or others (Ciavaglia 2007). For
both Kendra’s Law and the proposed SB 226, an order for assisted outpatient treatment is
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handed down by a judge after a hearing at which a court finds that all criteria are met by
clear and convincing evidence and that the treatment called for in the order is the least
restrictive available alternative (Assisted Outpatient Treatment 2005). According to
Jeanette Castello, the mother of a mentally ill child and a staunch advocate for the
mentally ill, approximately 500 people might be eligible for court-ordered assisted
outpatient treatment in Pennsylvania, roughly 8 people from each county (2007).
Now armed with an understanding of what SB 226 entails, we may proceed to the
argument in favor of this crucial piece of legislation.
The Case for SB 226
Although only a handful of people from each county are eligible for assisted
outpatient treatment, SB 226 would provide a mechanism to facilitate treatment for the
most mentally vulnerable segment of the population. Says John Snook of the Treatment
Advocacy Center: “[Assisted Outpatient Treatment laws] are carefully crafted to affect
only the most severely ill –the small portion that cycles in and out of jails, hospitals, and
the streets because they cannot voluntarily maintain their treatment in the community
(2007).
Advocates for SB 226 understand that mental illness often causes people to reject
treatment, even if it is clear that such treatment will ultimately prove beneficial. This
point is encapsulated in a report on Kendra’s Law which was prepared by the Treatment
Advocacy Center based in Arlington, Va.: “In enacting Kendra’s Law, the legislature
found that some people, as a result of mental illness, have great difficulty taking
responsibility for their own care, and often reject outpatient treatment offered to them on
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a voluntarily basis…these people often commit suicide, become homeless, end up in
jail…or are involved in acts of violence” (A Guide to Kendra’s Law). Thus, if patients
have a tendency to reject voluntary treatment, it is logical to subject these patients to
involuntary treatment issued by court order as a final layer of influence. In this way, the
purpose of SB 226 is not to punish the mentally ill, as some who are ignorant to the
realities of mental illness have claimed, but to motivate them toward treatment.
According to Dr. David Nover, a psychiatrist practicing in Bucks County,
Pennsylvania, forced out-patient treatment oftentimes makes patients feel obliged to
receive treatment when they have ambivalent feelings toward psychiatric intervention:
“In many instances, after a brief period of [forced] treatment, psychotic or highly agitated
patients improve and can make treatment decisions themselves” (Nover 2007). Dr.
William Knoedler, a psychiatrist of over 30 years working for an Assertive Community
Treatment program in Wisconsin, explains that clients generally respect the authority of
the court to remain in treatment (Castello 2007). Buttressing this point is Dr. Alan
Mendelowitz, a New York-based psychiatrist who works with hospitalized schizophrenic
patients. Dr. Mendelowitz explains that court orders are especially affective for “those
who fear the judicial system” (2007). It is clear that court orders provide patients added
incentive to engage in treatment, even if they were previously reluctant. As the
effectiveness of treatment has been proven, the Commonwealth of Pennsylvania should
do anything within its constitutional power to ensure that its most vulnerable citizens are
receiving the treatment they need. SB 226 arms the state with the necessary tools to
ensure that these people receive appropriate help.
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Assisted outpatient treatment is especially important for individuals who suffer
from anosognosia, or a lack of insight that one has an illness. Such an illness afflicted the
daughter of Jeanette Castello, the co-chair of the Pennsylvania Mental Health Treatment
Law Advocacy Group. In her testimony at the Oct. 2nd hearing on SB 226, Castello
explained how this disorder affected her daughter’s ability to take prescribed medication:
“The answer to why my daughter didn’t take prescribed medications is that as a part of
her brain disease, schizoaffective disorder, she also had a complete lack of insight that
she had an illness, which is also known as anosognosia” (Castello 2007). After Castello’s
daughter repeatedly failed to take her medications, Castello was unable to have her
daughter involuntarily committed because she did not meet the state’s “clear and present
danger” criteria (Ciavaglia 2007). Assisted outpatient treatment is a vital tool for helping
such individuals to engage actively in treatment even in the face of this lack of insight.
Furthermore, SB 226 is likely to have aided Castello’s effort to have her daughter
committed before she reached a level of such imminent danger.
Critics of SB 226 question whether outpatient commitment laws destroy
individual liberties (Applebaum 2005). Mental health professional Larry Laskey
articulates this concern for the civil liberties of the mentally ill: “There are some
consumer groups that are leery of this kind of legislation, as it does have the effect of
diminishing civil liberties for persons with mental illness. They view this legislation as a
potential slippery slope” (2007). However, John Snook, Legislative and Policy Counsel
of the Treatment Advocacy Center, summarily rebuffs this argument, saying, “A humane
law protects someone’s right not to be psychotic” (Inviting Tragedy 2007). Additionally,
the existing Kendra’s Law and proposed SB 226 both contain significant safeguards
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intended to protect the civil liberties of the mentally ill. These include due process
requirements such as a right to a hearing, right to counsel, a physician’s affidavit, and the
development of a treatment program (Greenleaf 2007). It is clear that although civil
liberties must be protected, overemphasizing such considerations would leave the state
powerless to protect those who require immediate and substantial help.
Both Kendra’s Law and the proposed SB 226 were drafted to prevent and preempt
tragedies on a local and national level. John Snook, who has been working tirelessly for
the passage of Pennsylvania’s SB 226, writes the following in a letter to the editor of the
Pittsburgh Post Gazette: “[Pennsylvania’s current] law is one of the strictest in the
country. As a result, those who cannot access treatment voluntarily must hit rock bottom
before they can be helped. Treatment is dependent on them first posing a clear and
present danger. This invites tragedy” (Inviting Tragedy 2007). Proving the presence of a
“clear and present danger” is extremely difficult, and it includes actual or attempted
substantial self-injury, attempted or inflicted serious bodily harm to another, acting in a
manner that indicates you may not be able to take care of yourself without assistance, or
attempting suicide or showing high risk of suicide” (Ciavaglia 2007). Due to the severity
of such requirements, the state oftentimes becomes involved far too late to prevent
tragedies such as suicide or murder.
As was previously explained, the impetus for New York’s Kendra’s Law was the
tragedy of Ms. Kendra Webdale, who was pushed in front of a subway train by a man
with untreated schizophrenia. New York responded to this tragedy by enacting Kendra’s
Law, which was designed to prevent the reoccurrence of violence triggered by mental
illness by establishing a viable assisted outpatient treatment program. It is time for
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Pennsylvania to learn from this and other tragedies and to enact similar legislation that
will preempt tragedies in our own state.
The recent shooting at Virginia Tech, which claimed the lives of 33 people last
April, highlights the need to rethink mental health laws nationwide. Perpetrator SeungHui Cho, a student at Virginia Tech, showed clear signs of mental illness, specifically
paranoia and psychosis (Colliver 2007). According to a San Francisco Chronicle article
published in the wake of the massacre at Virginia Tech, “[The shooting] highlights major
failings in our nation’s mental health laws: Long-standing laws protecting patients’ rights
make it difficult for authorities and family members to intervene and order a loved one to
receive treatment” (Colliver 2007). In the case of Cho, his previous behavior was not
deemed to be dangerous enough under the clear and present danger provision of
Virginia’s mental health legislation (Greenleaf 2007). Cho’s college professor’s
assertion that her student should be placed into treatment was not supported by Virginia
law (Greenleaf 2007).
Virginia’s legislation is eerily similar to that of Pennsylvania and begs the
question: Is Pennsylvania doing everything in its power to prevent the mindless
destruction of innocent life? Is it worth waiting for such a tragedy to begin the process of
re-evaluating long-standing laws that put the greater community at risk? SB 226
represents a significant step in ensuring that Pennsylvania acts appropriately to prevent
potential tragedies that shatter lives and communities. One must look no further than
Virginia Tech to realize the magnitude of the issue at hand. To stand idle and ignore the
implications of this bill is to reject the legislature’s role in protecting the citizens of the
state it represents.
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The proven success of New York’s Kendra’s Law, the law on which
Pennsylvania’s SB 226 is based, provides the informational capital that should lead to
widespread support for our own state’s assisted outpatient treatment program. The
evidence that assisted outpatient treatment works is indisputable: A New York study of
the effectiveness of the implementation of assisted outpatient treatment found that
problems in self-care and community living dropped by 23 percent on average and
harmful behaviors dropped by 44 percent, including a 47 percent decline in physical harm
to others. Specifically, 55 percent fewer recipients attempted suicide or physical selfharm, 49 percent fewer abused alcohol, and 48 percent fewer abused drugs (Assisted
Outpatient Treatment 2005). Arrest, incarceration, psychiatric hospitalization, and
homelessness all dropped by at least 75 percent (Applebaum 2005). When specifically
analyzing the incidence of psychiatric hospitalizations, the results are consistent when
analyzing the data by region and by county, proving that the program’s success was
ubiquitous throughout the state of New York (Assisted Outpatient Treatment Reports).
The following tables offer graphical representations of these statistics.
Psychiatric Hospitalization (Reduced Incidence by County Since
November 1999)
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Psychiatric Hospitalization (Reduced Incidence By Region Since
November 1999)
Source: Assisted Outpatient Treatment Reports from the Office of Mental Health (New
York State)
It is worth noting that nearly two-thirds of patients who were subject to a court
order had their commitments renewed after the first six months, which comes to an
average commitment period of 16 months (Applebaum 2005). This piece of data
suggests that the majority of those initially ordered to participate in assisted outpatient
treatment are people who truly do require treatment and generally benefit from such
treatment.
Kendra’s Law has successfully improved treatment compliance in New York: The
number of individuals exhibiting good adherence to their medication rose by an
astounding 103 percent, while the number of individuals exhibiting good service
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engagement increased by 51 percent (Assisted Outpatient Treatment 2005). Of crucial
importance is the fact that the participants themselves believe that their assisted
outpatient treatment program is beneficial. Of 76 participants interviewed in accordance
with the 2005 review of Kendra’s Law, 81 percent reported the program helped them get
well and stay well (Greenleaf 2007). Paul S. Appelbaum, M.D., sums up the success of
Kendra’s Law: “New York State has been able to focus on a very ill and impaired target
population and appears to have generated substantial improvements in these individuals’
level of functioning” (2005).
The favorable statistics in New York are consistent with the analyses of Assisted
Outpatient Treatment in other states. For example, in Ohio, outpatient commitment
increased patients’ compliance with outpatient psychiatric appointments from 5.7 to 13
per year. In Arizona, among those who had been outpatient-committed, 71 percent of
patients voluntarily maintained their treatment contacts six months after their orders
expired, compared to a negligible number who had not been on outpatient commitment.
Finally, in North Carolina, the outpatient commitment program reduced hospitalizations
by 72 percent (Assisted Outpatient Treatment 2005). These statistics provide
overwhelming support for the success of assisted outpatient treatment programs. In the
face of such statistics, it seems inconceivable for Pennsylvania not to consider adopting
similar legislation.
To conclude, SB 226 represents a viable solution for the Commonwealth of
Pennsylvania as it explores strategies for aiding our severely mentally ill citizens, an oftoverlooked segment of the population. In the wake of the massacre at Virginia Tech,
Pennsylvania cannot afford to remain stagnant while other states take appropriate
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measures to prevent similar tragedies. The success of Kendra’s Law and other laws
around the country provide a proven roadmap for implementing a law like SB 226 and
prove the effectiveness of these laws. As the fields of psychology and law continue to
merge, it is essential that our mental health laws reflect the realities of mental illness in
today’s society. It is the job of this legislature to ensure that Pennsylvania’s mental
health law does not languish into irrelevance. The time to act is now.
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Works Cited
*Jeanette Castello, mother of a mentally ill patient suffering from schizoaffective
disorder (ongoing e-mail correspondence; [email protected] )
*Stewart Greenleaf, Pennsylvania State Senator
Larry Laskey, Mental Health Professional at Penndel Mental Health Center (November
3rd e-mail correspondence; [email protected])
Dr. Alan Mendelowitz, psychiatrist working with hospitalized schizophrenic patients in
New York City (November 10th phone correspondence)
David Nover, psychiatrist based in Bucks County, Pennsylvania (November 6th e-mail
correspondence, [email protected])
*John Snook, SB 226 advocate of the Treatment Advocacy Center
*= testimony given at October 2, 2007 Senate Bill 226 (hearing information cited in
Works Consulted)
Applebaum, Paul S. M.D. “Law & Psychiatry: Assessing Kendra's Law: Five Years of
Outpatient Commitment in New York.” Psychiatric Services. 56:791-792, July
2005.
“Assisted Outpatient Treatment Reports.” Office of Mental Health. New York State.
http://bi.omh.state.ny.us/aot/sig-events-reduced.
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“Assisted Outpatient Treatment: Results from New York’s Kendra’s Law.” Briefing
Paper. March 30, 2005.
http://www.treatmentadvocacycenter.org/BriefingPapers/BP18.htm.
Ciavaglia, Jo. Bill Mandates Treatment for Mentally Ill. Bucks County Courier Times.
November 18, 2007.
Colliver, Victoria. “Patients’ Rights v. Public Safety.” San Francisco Chronicle. 22
April 2007.
“A Guide To Kendra’s Law.” Third Edition. The Treatment Advocacy Center.
Arlington,
Virginia.
http://www.treatmentadvocacycenter.org/StateActivity/NewYork/GuideKL.htm
Snook, John. “Inviting Tragedy.” Pittsburgh Post Gazette. September 13, 2007.
Watnik, Ilissa L. “A Constitutional Analysis of Kendra’s Law.” JSTOR. Vol. 149 pp.
1181- 1228. University of Pennsylvania Law Review. 2001.
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Works Consulted
Dr. Robert Benedek, psychologist based in Baltimore, Maryland (November 26th phone
correspondence)
Erickson, Edwin. “Hearings.” Senate Public Health and Welfare Committee.
http://senatorerickson.com/public-health.htm.
“An Explanation of Kendra’s Law.” Office of Counsel for New York State. The
National Alliance on Mental Illness. November 1999.
http://www.naminys.org/kendra_what.htm.
Luo, Michael. “Cho’s Mental Illness Should Have Blocked Gun Sale.” New York Times.
April 20, 2007.
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