With Kendra's Law, mental hygiene courts now have unprecedented powers over the lives of the mentally ill-and a long track record of shutting them out.
By Wendy Davis
At first, John Sharpe does not seem out of place at Kingsboro Psychiatric Hospital. Wearing a brown monk-like tunic, he shuffles to the kitchen that doubles as a visiting room with an exaggeratedly slow gait, hesitant to make eye contact. His speech is slow and deliberate, and his responses to questions are slightly too long in coming.
But when the 31-year-old Sharpe finally speaks, he turns out to be surprisingly articulate. In a gentle voice, he readily admits he has signs of mental illness-although to him, the symptoms are evidence of a religious conversion. He says that 10 years ago, he "became very enlightened, very psychotic," and entered his first mental ward. Now, he's nine months into his fourth hospitalization.
He knows that he can't function well on his own, but he's not at all happy about the drugs that his doctors expect him to take, and he has consistently refused medication. So the hospital took him to court. At his hearing in Brooklyn's Mental Hygiene Court in front of Judge Anthony Cutrona, the Kingsboro doctor testified that Sharpe was delusional-he believed, among other things, that he was the "son of God"-and didn't interact well with the hospital staff. For his part, Sharpe testified that he believes everyone is a "child of God."
He also told the judge that he didn't want medication-the drugs brought on severe side effects like twitching. Judge Cutrona authorized it anyway. Three days after his hearing, Sharpe was injected with Prolixin, an anti-psychotic that can cause muscle spasms, eye paralysis, permanent neurological damage-or simply make people feel they're caught in one of those nightmares where their limbs won't move.
As Sharpe and some 3,500 other mentally ill patients in the region discover each year, the judges of New York State's little-known Mental Hygiene courts wield an enormous amount of power over their lives. That's never more true than when a hospital wants to dose a patient with medication or order electro-convulsive therapy, and the patient says no. Almost always, the hospital wins. Last year alone, more than 3,500 cases went to hearing in these courts. In 90 percent of cases in which patients fought hospitals' medication orders, the court decided in favor of the hospital-and ordered the patient to take psychotropic drugs.
Thanks to the new legislation known as Kendra's Law, these courts now have even more power. Formerly, judges only had jurisdiction over the institutionalized. Now, under the law's pretext of "outpatient commitment," the courts have the power to decide the essential details of many mentally ill people's lives long after they have left the hospital. A judge can now rule on many issues: from which medications a patient must take to whether they spend their days learning word processing or taking pottery classes. Even such basic decisions as where to live and work can now be controlled by the courts.
How do these judges make their decisions? By weighing the words of a psychiatric patient against the professional opinion of the hospital's doctor. For most of the State Supreme Court judges who hear the cases, it's a part-time, short-term job.
No judge or psychiatric doctor wants to mistakenly free a man like Kendra Webdale's murderer, or see a deeply troubled patient go off medications and wind up homeless or dead. So in New York's mental hygiene courts, charge many advocates for the mentally ill, the cards are stacked against the patient's wishes. The doctor's word is almost always law.
Although they affect thousands of people each year, New York's Mental Hygiene Courts are a forgotten corner of the state judicial system. As psychiatric hospitals continue to downsize and release patients, and as drug treatments expand, these courts have disappeared from view. Until 1997, the courts were closed to the public, and even now the outside world pays scant attention to what happens inside. Part of that is simply geography: Some are housed within psychiatric hospitals, like Queens' Creedmoor Hospital, far from other judges, lawyers and the public.
"These cases are done in darkness," says New York Law School professor Michael Perlin, who has represented the mentally ill for more than two decades. "They're the dog that doesn't bark in the night." The patients who end up in court are almost invariably poor, says Perlin; many are alienated from their families and on their own during the ordeal of insanity and hospitalization. The court's decisions are rarely brought to light, much less appealed: Only 81 of the approximately 2,500 patients who were involuntarily committed last year tried to fight the decisions.
And judges in mental hygiene cases wield a power no other judge has: the ability to imprison people who have not done anything wrong. "The only way we lock people up in any other situation is if they've committed a crime," says Perlin. "We allow courts to commit people to psychiatric facilities if they haven't committed a crime."
Most of the cases that wind up in Mental Hygiene Court are like Sharpe's, where a patient is either refusing medication (most commonly haloperidol, an anti-psychotic) or trying to be released from the hospital. Some cases are new commitments, in which family or friends may be trying to get someone involuntarily locked up. If a judge agrees that a person is mentally ill enough to be a danger to himself or society, the court can send the patient to a locked psychiatric ward.
(Contrary to tabloid opinion, "dangerous" does not always mean violent. In particular, perfectly peaceful homeless patients may be considered dangerous to themselves, because if they are released they face the very real threat of victimization on the streets.)
At mental hygiene hearings, which last an hour or two at most, the hospital's doctor testifies first, followed by the patient. Rarely do the two agree. When there are obvious inconsistencies in the doctor's testimony, a judge may bring in another psychiatrist from a court roster for a second opinion.
That rarely happens; for the patient, the only witness in court is generally a hostile one. Mental hygiene patients have the right to call a doctor to testify on their behalf, but most have neither the resources nor the cash. Patients without their own doctors can only hope to convince the courts that the hospital psychiatrist is wrong by trying to make a good impression, sitting quietly and answering questions calmly.
For most patients, their only recourse lies with their court-appointed Mental Hygiene Legal Services lawyer, who is entitled to inspect the medical records and cross-examine the psychiatrist, or try to convince the judge to get a second opinion. Lawyers consider this a huge victory, even though it means a patient will have to remain in the hospital for at least a few more weeks. A "neutral expert" can at least "offer a different glimpse of the person," says Dennis Feld, a lawyer with Mental Hygiene Legal Services in Manhattan. In a field as subjective as psychiatry, a second opinion can make all the difference.
A judge will be much more easily convinced by a psychiatrist, says William Brooks, a leading advocate for patients' rights who teaches at Touro Law Center. "If I'm a mentally ill person, I'd rather have a psychiatrist come in than a lawyer," he concludes. Asked whether the court commits people who don't meet the legal requirements for hospitalization-that they are a danger to themselves or others-Brooks doesn't hesitate: "Every day."
Some psychiatrists who testify in court acknowledge that their first consideration, above all else, is averting a tragedy. "Doctors, as a lot, want to err on the side of safety. [And] psychiatrists have a huge burden of protecting society," says one psychiatrist at a city hospital. "You really understand that sometimes you're the person standing between life and someone jumping off the 59th Street Bridge."
Judges, too, worry that overruling a doctor's opinion may lead to disastrous results. "Judges tend to view their job as doing what is in the best interests of the people involved," says Steve Brock, an attorney on Long Island who used to run the Protection Advocacy for the Mentally Ill clinic out of Touro Law Center. "Unfortunately, given the very small amount of information that they usually have, their view of best interest tends to coincide with what the doctors think is best."
"It's such a sensitive and particular field," admits administrative judge Michael Pesce, who oversees all supreme courts in Brooklyn and Staten Island, including the Mental Hygiene court. "I was in [that court], and I said, 'how the heck do they decide this?' What do you draw on to make the determination? It's a judgment call-do you want to play it safe?"
Last August, New York became the 41st state to enact an "outpatient commitment" law, extending court control to mental patients who live on their own. Named for Kendra Webdale, who was pushed to death under a subway train by Andrew Goldstein, a schizophrenic, Kendra's Law allows courts to force mentally ill people with a history of hospitalization or violence to comply with treatment.
So far, hospitals have brought only a few dozen patients to court under the law. But the state Department of Mental Health has estimated that the numbers may ramp up to about 7,000 cases a year-meaning that thousands of New Yorkers could be coerced into treatment through the law.
Most often, "treatment" means medication. Indeed, outpatient commitment laws-along with state hospitals' aggressive efforts to discharge patients, health insurers' insistence on medication over expensive hospitalization, and the pharmaceutical industry's efforts to expand its markets-have put drugs at the heart of psychiatry. It's been nothing short of a revolution, allowing some patients to function on their own.
But psychotropics are imperfect. Anti-psychotics can have horrendous side effects, most seriously tardive dyskenesia, an irreversible syndrome of muscle tremors and tics much like Parkinson's disease. Other consequences include liver damage and disorientation. Some patients prefer to tough out their voices or mood swings rather than be subjected to debilitating effects of drugs.
"Patients always have good reasons for not wanting medication," says Connie Lesold, a psychiatric social worker who has observed hundreds of hearings in Brooklyn's mental hygiene court in the last two years. She tells of one young poet who testified that medication made her "lose her words." A 19-year-old athlete wanted to play professional football and was concerned that Thorazine would destroy his body. And as even laypeople know, anti-psychotics are virtually synonymous with severe lethargy. "They all see other patients who've been turned into zombies," says Lesold.
Courts have the power to order patients to take drugs only if they lack the capacity to make a decision for themselves and if the benefits of the drugs outweigh the risks. But according to advocates for patients, judges don't always follow those guidelines, denying patients their right to make their own decisions.
Judge Maxine Duberstein, who presided over Brooklyn's mental hygiene court for more than a decade, was infamous for ruling against patients. She came under scrutiny in 1997, when reports of her practice circulated from the courthouse rumor mill to Project Release, an organization of former psychiatric inpatients.
>From June through November 1997, Project Release's Tina Minkowitz and a handful of other advocates sat in on every mental health hearing in the borough. Their findings: In four months of deciding whether patients should be forced to take medication, Duberstein ruled against them every single time.
Duberstein resigned shortly before the report was made public, and the judges who have replaced her have not been so singleminded. But the lesson is clear: Some judges can and will order medication even when patients exercise their legal right to say no.
Albany's outpatient commitment law does have some civil rights protections. To qualify for Kendra's Law, a person must not only be mentally ill but also have a history of refusing treatment. Doctors must consider the person "unlikely to survive safely in the community without supervision," "unlikely" to comply with treatment voluntarily and "likely to benefit" from a court order.
And ultimately, there's not a whole lot anyone can do if patients still refuse. Though the penalties are extremely unpleasant-they start with police arrest, and end with an emergency room stay for up to 72 hours of observation-the courts can't commit violators to a hospital just for refusing to take medication.
History suggests that court orders may not be very effective anyway. From 1995 to 1998, a pilot project compared two groups of patients recently released from Bellevue: One had been ordered by Manhattan Mental Hygiene court to participate in treatment (both drug and non-drug), and another group was offered the same services without a judge's order.
Unlike many outpatients in the real world, both groups were offered an ample array of services. Patients were referred to day- treatment programs, therapy, visiting nurses or intensive weekly treatment regimens. Ultimately, evaluators found that court orders had no effect on patients' rate of hospital readmission or on whether they were arrested following their discharge. What did appear to make a difference were the intensive services.
That four-year experiment, say advocates for the mentally ill, reveals what's wrong with New York's priorities. There are outpatient services available, but without case managers, mentally ill people often can't hook up with this kind of support. New York City has just over 4,100 slots available for patients to get this kind of one-on-one help. Waiting lists are months long.
Andrew Goldstein is a case in point. Far from shunning psychiatric help, he sought it out. But he could not get a case manager to make sure that he took drugs and got the services he needed.
Well aware that the personnel shortage contributed to the Webdale tragedy, Governor George Pataki has proposed substantial new funding for case managers. The catch is that a third of the new money, $26.4 million statewide, is earmarked for patients who are already under court orders as a result of Kendra's Law-and only they are legally guaranteed a case manager.
Mental health advocates fear that if the number of Kendra's Law cases climbs, no case managers will be left for everyone else. "They will go to the head of the list," predicts John Gresham, an senior litigation attorney with New York Lawyers for the Public Interest. "Who's going to get kicked off to make room?"
The fact that mental hygiene courts are now deciding outpatient treatment troubles patient advocates. "It used to be, if you can only get through that door, they had no legal apparatus to come after you," says Cassandra Mello, a local leader in the grassroots fight against Kendra's Law. Like many patient advocates, Mello was once hospitalized herself; as a teenager, her parents put her in a psychiatric hospital.
Another advocate, Jody Silver, is looking for grant money to monitor how mental hygiene courts handle Kendra's Law cases. Silver intends to track the race, income level and ethnicity of people brought to court, data that will probably show that most patients under Kendra's Law orders will be poor people of color.
Calling Kendra's Law "a knee-jerk response to a political and media-driven problem," Silver is adamant that the real difficulty in treating mental illness is not legal but budgetary: there just aren't enough community-based programs to keep ex-psychiatric patients stable. "We don't have enough services, we don't have enough clubhouses, we don't have enough peer counselors," emphasizes Silver, who works with Community Access, an advocacy organization that works to integrate mentally ill people into public life by giving them structure, social networks, and a support system. At the clubhouse, outpatients can go for job training, art classes, meals or just to shoot pool and play chess.
Silver sees the dangers in the law-that it may be scaring mentally ill people away from voluntary treatment. Many mentally ill people, misunderstanding the law, fear that if they seek out help they may wind up before a judge. "There's a kind of terror," says Silver, who works every day with people who could face Kendra's Law orders. "People are afraid now."
"As a consumer, I'd run as far as I could run," agrees Robin Simon, a Community Access peer counsel who intends to accompany patients to court in Kendra's Law cases. In the debate over doctors' opinions versus patients' rights, Simon is a staunch defender of civil liberties-in part because she knows firsthand how fallible the professionals can be.
Now 43, Simon entered her first psychiatric ward in 1992. She says that it took 13 hospitalizations, with almost as many different diagnoses, until the doctors hit on bipolar disorder in October of 1996. Although she believes the psychiatrists finally got her diagnosis right, she has consistently refused to take lithium, the commonly prescribed treatment, because of the side effects. Instead, she has taken Depakote; while not the professionals' first choice, it has kept her out of the hospital for more than three years.
Having decided for herself what medication to take, Simon is adamant other mental patients should have the same right. "Don't court-order me," she says. "Don't take away my civil rights."
Wendy Davis is a reporter with the New York Law Journal.
Ccopyright May, 1999, by City Limits Magazine.
Courtesy of City Limits Magazine, (www.citylimits.org; 212.479.3344).
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