As seen in Psychology Today.
This is the final installment in a series meant to offer some guidance to friends and family who are worried that someone they love may harm themselves or others. These posts have been published to honor Mental Health Awareness Month. The first part of the series, which was posted on May 7, provided information about how widespread the mental health crisis in the United States is, noted the differences between mentally unhealthy individuals and individuals with mental illnesses, and described a few methods as to how one can take the initiative when confronting someone who you feel may be a danger to themselves. In the second part, which was posted on May 15, I focused on the importance of persistent treatment for individuals with severe mental illnesses, noted that patients with severe mental illnesses are not more inclined to violence than the general population, and offered some guidance for those whose loved ones have indicated they may be a danger to themselves or others. The third part, which was posted on May 24, described what happens when an individual who poses a threat to themselves or others is brought to the hospital in New York State.
Here, in the final part of the series, I hope to examine some of the laws that have been implemented to protect those with mental illnesses, as well as some of the landmark court decisions that have shaped mental health laws in New York and beyond. Some of these laws were put into place to protect patients from themselves. Others were put in place to grant more rights to patients.
This is not a comprehensive list by any means. For a more in depth reading of how the American mental health system has evolved throughout the 1900s and into this century, see work of E. Fuller Torrey.
Danger to Self or Others (Lessard v. Schmidt)
Approximately fifty years ago, many patients could be committed against their will in massive facilities that looked like they had come out of a Victorian-era nightmare. Some remained there for weeks. Some remained there for months. Some were more or less forgotten about and languished in these state-run institutions for years. Conditions were comparable to prisons and, in some cases, all it took for a patient to be placed in one such facility was three affidavits attesting to their need for treatment. Patient appeals were largely for show. The courts treated the severely mentally ill as wards of state under a policy known as parens patriae (Latin for “parent of the nation”), and judges frequently ordered they be committed indefinitely for their own protection.
This kind of treatment had been common in the United States for decades. It was not a good system and, as more people learned about the horrors that took place behind the closed doors of these institutions, policy makers and the American public began to demand change. The courts did, as well. In 1971, Alberta Lessard climbed onto the ledge of her window fearing that a squad of “goons” under the direction of former President Richard Nixon were coming for her. A frightened neighbor called the police upon seeing her on the ledge. When they arrived, they pulled Lessard inside and took her to Milwaukee County’s Asylum for the Chronic Insane, a facility where Lessard had been three times in the previous two years. Doctors there had diagnosed her with schizophrenia and once again committed her.
While in the asylum, Lessard contacted Milwaukee Legal Services. Rather than appeal the decision to commit her, her attorneys at the MLS filed a class-action lawsuit, Lessard v. Schmidt, in federal court. They alleged that all committed people have been denied their civil rights.
In 1972, a panel of federal judges in Milwaukee ruled that Wisconsin’s commitment laws were unconstitutional. They found that the only justification for involuntary hospitalization for a mental illness is when “there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others.” The court also ruled that patients have the same constitutional rights as criminal suspects—namely, the right to remain silent, the right to counsel, and rights protecting them from hearsay evidence. The protection from hearsay evidence means that, should the patient not want hospital staff speaking with family members, then hospital staff is barred by law from doing so. In 1974, the United States Supreme Court upheld this decision, thereby making it the law of the land.
Right to Object to Treatment (Rivers v. Katz)
Numerous cases heard throughout these two decades also examined whether a patient has the right to refuse treatment. In Rivers v. Katz, which was heard by the New York State Court of Appeals, the court ruled that patients do have a right to refuse treatment with two notable exceptions. The first is if they are legally incompetent. The second is under emergency circumstances.
Prior to the Rivers decision in 1986, New York law required hospitals to conduct a clinical administrative review when involuntary patients refused pharmacological treatment. If it was found that patients lacked sufficient insight into their condition and that treatment would be in their best interest, physicians were allowed to administer treatment even over patients’ objections. Recourse to the courts was not deemed necessary.
In Rivers, the court unanimously found that patients may not be forced to take psychotropic medications without a judicial review to assess patient competence. Patients found to be competent have the right to refuse treatment. If a judge finds the patient to be incompetent, then the judge will issue what is known as a substituted treatment decision.
The ruling did not affect physicians’ ability to administer treatments in emergency setting, even if the patient objects.
Duty to Warn (Tarasoff Laws)
While it is well-known that one of the Hippocratic Oath’s guiding principles is often said to be primum non nocere (“first do no harm”), an equally important ethical imperative concerns patient-physician confidentiality. It’s not only the Hippocratic Oath that forbids doctors from divulging information that they learn while treating a patient; medical professionals can also be held liable in a court of law for violations of confidentiality.
However, doctors in some states are bound by a legal duty to warn individuals of a threat against them should a patient disclose that they intend to do that individual or group of individuals harm. The first time such a directive was issued was in a 1976 decision from California’s Supreme Court in the case Tarasoff v. The Regents of the University of California. The decision imposed a legal duty on mental health professionals to warn third parties should patients make threats to their safety. California’s state legislature subsequently passed a law based on the court’s ruling.
The specifics of the tragedy reveal why the court made this decision.
In 1969, a university student named Tatiana Tarasoff was murdered by another student named Prosenjit Poddar. This was not a random act of violence. Poddar and Tarasoff had dated for a brief period of time, but Tarasoff had ended the nascent relationship after realizing that Poddar thought things far more serious than they were.
In the aftermath of the breakup, Poddar became depressed and began stalking Tarasoff, though this ended when she went to Brazil during the summer. Friends urged Poddar to see a therapist in the hope that his condition would improve. During this time, Poddar confided that he had thought about killing Tarasoff. Concerned that Poddar was suffering from schizophrenic delusions, the therapist reported him to the campus police. They quickly released him, as he did not appear to be suffering from a mental illness.
The therapist did not inform Tarasoff or her family of the threat. Meanwhile, Poddar stopped meeting with the therapist. Once Tarasoff returned home from Brazil, Poddar stabbed and killed her. Following the murder, Tarasoff’s family sued the therapist and other employees of the university.
Because of the case, laws that either require or permit medical professionals to inform third parties of a threat are known as Tarasoff laws, though they may also be known as “duty to warn” or “duty to protect” laws. Most states have passed similar legislation. In some cases, the duty is mandatory—i.e., the mental health professional is required to inform the third party of the threat. In others, mental health professionals may disclose this information to the targeted third party, but they are not required to do so.
In New York State, physicians are required to inform third parties of the threat.
Assisted Outpatient Treatment (Kendra’s Law)
On a rainy Sunday afternoon in January 1999, Andrew Goldman, 29, descended the stairs to the subway station at 23rd Street, just feet away from Manhattan’s iconic Flatiron Building. Though Goldman had been diagnosed with schizophrenia a decade beforehand, he was living on his own and receiving treatment at an outpatient center. His treatment was entirely voluntary and, unfortunately, he had repeatedly skipped appointments. Medical records indicate that this had resulted in frequent hospitalizations, including one just six weeks beforehand, but he was repeatedly released because the hospital ruled that he did not pose an imminent danger to himself or others.
Once on the subway platform, Goldman approached Kendra Webdale, a 32-year-old aspiring writer who had moved to the city from Buffalo. Without provocation, he shoved her onto the tracks. The conductor of the oncoming N train didn’t have time to stop.
In the aftermath of this senseless crime, New York State passed what is known as Kendra’s Law. Most other states have enacted similar statutes, where they are known as assisted outpatient treatment laws. Only three states, Connecticut, Maryland, and Massachusetts, do not have these kinds of laws in place.
Assisted outpatient treatment laws do not exclusively affect patients who are an imminent danger to themselves or others. Some patients may not need inpatient care, but still may not be able to function appropriately in the community without treatment, and consequently may be eligible. Under these laws, patients can be brought to court by either doctors, police, or family members before a judge in the Mental Hygiene Court. Very often, patients who are currently receiving inpatient treatment are brought before the judge, and the judge will order that they undergo outpatient treatment once they have been
released. The state is then required to provide treatment. Physicians typically request the treatment be implemented for six months with the option to renew for another six months.
In New York, patients who are eligible for the program created by Kendra’s Law must have both demonstrated an inability to comply with treatment programs and committed a violent act, been incarcerated, or undergone treatment at an impatient facility within the past 48 months. Assisted outpatient treatment is also frequently utilized if a patient has been hospitalized at least twice in the past 24 hours; and if, over the course of the past five years, the patient has demonstrated a pattern of noncompliance and behavior that is threatening to themselves or others.
There are no criminal penalties should a patient fail to comply, but noncompliant patients will be brought to the emergency room and held involuntarily for 48 hours. During this time, a team at the hospital will evaluate the patient to see if they should be readmitted or if they can be released. The added incentive to remain in treatment has been proven to be effective. A 2013 analysis by researchers at Duke University found that patients involved in programs like the one created by Kendra’s Law are hospitalized and arrested less frequently than prior to the court order requiring they undergo outpatient treatment.
As this brief overview of some of the laws that regulate our nation’s mental health system show, the age of asylums and Nurse Ratchet are now ancient history. Legal protections have been put in place to ensure not only the public’s safety, but that the Constitutional rights of the mentally ill are respected while mental health professionals work to provide them with the best treatment possible.
It is important to remember that, while patients with severe mental illnesses can pose a threat to themselves or others, most of them can manage their symptoms if they receive treatment. However, they may not be able to do it alone. If someone you love has shown signs that they may be a danger to themselves or others, you should act immediately to get them the treatment they deserve.