Involuntary outpatient commitment is a form of civil commitment in which a court orders an individual to receive treatment and related services in a community setting. Nearly all states in the United States permit outpatient civil commitment, though the manner in which it occurs varies among the states. It is also used in other countries. Whether outpatient commitment should be used has been a source of much debate since the 1970s. While it continues to be controversial, the courts that have considered it have upheld its legality. Research to date suggests that it may be effective in some circumstances for some patients when combined with long-term treatment, though the reasons for its effectiveness are not known at this time.
Civil commitment is a form of compulsory treatment. Every state has a civil commitment statute that permits the involuntary hospitalization of an individual if certain conditions (generally a mental illness with behavioral consequences, most typically dangerousness to self or others) are found to exist. Many states have broadened the application of involuntary civil commitment statutes to permit individuals to be committed to treatment in outpatient settings.
Because outpatient civil commitment, like inpatient civil commitment, involves some deprivation of individual liberty, state statutes must specify the criteria that will be applied before someone can be ordered into outpatient care. There are three general types of outpatient commitment. The first is a form of “conditional release” used in some circumstances when an individual is going to be discharged from inpatient psychiatric care. The individual must agree on discharge to comply with one or more conditions, including the receipt of treatment in the community. A second type of outpatient commitment statute (most common among the states) uses the same criteria for both inpatient and outpatient commitment but permits a judge to order outpatient treatment as an alternative to inpatient treatment if the judge finds that the person meets the criteria for civil commitment. In the third type of outpatient commitment statute, there are separate statutory provisions for outpatient commitment, and the criteria differ from those used for inpatient commitment.
Criteria for Outpatient Commitment
While most states use the same criteria for inpatient and outpatient commitment, since the mid-1990s there has been more emphasis on the creation of discrete and separate criteria for outpatient commitment. These statutes, best exemplified by those found in New York and North Carolina, use many or all of the following criteria in defining those individuals who may be involuntarily ordered into outpatient treatment:
- The person is 18 years of age or older.
- He or she suffers from a mental illness.
- The individual is unlikely to survive safely in the community without supervision.
- He or she has a history of lack of adherence to treatment for mental illness.
- As a result, within a defined period in the past (usually 36 or 48 months), he or she has been hospitalized or jailed or has engaged in dangerous conduct (including threats).
- The individual refuses treatment or lacks the capacity to accept treatment voluntarily.
- In light of the person’s history and condition, the person requires treatment to prevent a relapse or deterioration that could result in harm to the person or others.
A primary difference between criteria such as these and more typical involuntary commitment criteria is that these criteria are preventive in nature, permitting intervention in anticipation of the person’s relapse or deterioration. In contrast, most civil commitment statutes permit intervention only after the occurrence of specified behavior, typically defined as being dangerous to either self or others, or an inability to meet basic needs.
These “pure” outpatient commitment statutes also typically require a finding by the judge that treatment will be available to the person if the court orders it. The statute may specify the types of treatment that may be ordered as part of an outpatient treatment order. For example, the New York law (which uses the phrase “assisted outpatient treatment” rather than involuntary outpatient civil commitment) states that ordered treatment
shall include case management services or assertive community treatment services to provide care coordinate, and may also include any of the following categories of services: medication; periodic blood tests or urinalysis to determine compliance with prescribed medications; individual or group therapy; day or partial day programming activities; educational and vocational training or activities; alcohol or substance abuse treatment and counseling and periodic tests for the presence of alcohol or substance abuse; supervision of living arrangements; and any other services…prescribed to treat the person’s mental illness and to assist the person in living and functioning in the community, or to attempt to pre-vent a relapse or deterioration that may reasonably be predicted to result in suicide or the need for hospitalization. (N.Y. Mental Hygiene Law § 9.60(a)(1))
The specific definition of services that must and may be included as part of an outpatient treatment order also differs from a typical involuntary commitment statute, which does not provide such specificity.
Consequence of Noncompliance with an Outpatient Treatment Order
If the person fails to comply with the treatment order, state law typically permits one of two responses. The person may be brought back to court, and the court may impose new conditions, emphasize the importance of complying with the existing conditions, or hold the person in contempt of court—something that rarely, if ever, happens. Second, the person may be ordered to an inpatient setting for assessment to determine whether the person now meets the criteria for inpatient commitment. If so, the person may be hospitalized under the state’s involuntary commitment provisions.
One of the primary reasons for the enactment of outpatient civil commitment provisions is the argument that individuals with mental illnesses who quit taking prescribed medication are the group of people most at risk for deterioration and ultimately behavior that endangers them or others. Outpatient commitment laws typically permit a judge to order the person to take medication as part of the commitment order. However, before a person may be forced to take medication, state laws usually require another court hearing to determine if the person lacks the capacity to make decisions regarding medication. If the person is found to have the capacity (i.e., the legal competency) to make decisions about medication, then the person is usually permitted to continue to refuse medication despite the fact that he or she is under an outpatient treatment order.
The Legality of Outpatient Commitment Statutes
Some have criticized outpatient commitment statutes on legal grounds, arguing that they represent an unwarranted and legally suspect extension of the state’s authority to force people to accept treatment against their will. However, courts have uniformly upheld the constitutionality of outpatient commitment statutes and in doing so have provided judicial endorsement of the state’s authority to act preventively in certain circumstances. For example, in upholding the constitutionality of New York’s outpatient commitment statute, the New York Court of Appeals observed that the statute forwarded the state’s interest in “warding off the longer periods of hospitalization that, as the Legislature has found, tend to accompany relapse or deterioration” (In the Matter of K.L., 2004, p. 487).
Issues in Implementing Outpatient Commitment
The implementation of outpatient commitment statutes varies by state. A number of implementation issues have been reported. First, it appears that regardless of the type of statutory provision a state has, outpatient commitment orders are used most frequently at the point of discharge, as a way of attempting to ensure treatment compliance as the person enters the community. Second, there are a number of practical barriers that sometimes reduce the use of outpatient commitment. These include difficulties in transporting the individual, limits on treatment capacity, and lack of adequate social supports such as housing. Third, perceived difficulties in enforcing outpatient commitment orders may reduce its use in some situations.
The Impact of Outpatient Commitment Statutes
There have been two generations of research into the effectiveness of outpatient commitment statutes. The first generation of research generally relied on anecdotal evidence from a particular state or jurisdiction, and while this research often suggested that outpatient commitment was effective, there were significant methodological problems that called the reliability and generalizability of the findings into question.
The second generation of research has been more methodologically rigorous and has examined the impact of pure outpatient commitment statutes, principally in New York and North Carolina. The most comprehensive studies have been conducted in North Carolina. The North Carolina studies relied on random assignment of involuntarily hospitalized individuals meeting the state’s criteria for outpatient commitment to either be released from treatment or undergo outpatient commitment. Patients in the latter group could receive a renewable 180-day treatment extension after the original 90 days of treatment. While outcomes between the two groups did not differ significantly on most measures, patients in the latter group who received comparatively more intensive outpatient commitment over a longer time had fewer hospital admissions, had fewer days in hospital, were less likely to be violent or victimized, and were more likely to comply with outpatient treatment. However, a comparably designed study in New York did not find similar outcomes.
While it is not clear from the extant research precisely how outpatient commitment might result in better outcomes for some individuals, the North Carolina studies in particular suggest that outpatient commitment orders must be accompanied by treatment over time to be effective.
References:
- In the Matter of K.L., 806 N.E.2d 480 (N.Y. 2004).
- Monahan, J., Swartz, M. S., & Bonnie, R. (2003). Mandated treatment in the community for people with mental disorders. Health Affairs, 22, 28-38.
- Ridgely, S., Borum, R., & Petrila, J. (2002). The effectiveness of outpatient commitment. Santa Monica, CA: RAND Institute.
- Swartz, M. S., Swanson, J. W., Hiday, V.A., Wagner, H. R., Burns, B. J., & Borum, R. (2001). A randomized controlled trial of outpatient commitment in North Carolina. Psychiatric Services, 52, 325-329.
- Swartz, M. S., Swanson, J. W., Kim, M., & Petrila, J. (2006). Use of outpatient commitment or related civil court treatment orders in five U.S. communities. Psychiatric Services, 57, 343-349.
Return to the overview of Mental Health Law in Forensic Psychology.