CENTER FOR PUBLIC REPRESENTATION

• Massachusetts already has a form of forced outpatient treatment. A form of outpatient forced treatment already exists in this state. The so called Rogers treatment orders for people who live outside hospitals can be the functional equivalent of outpatient commitment. These orders, which are entered by Probate and Family Courts, may require an individual with mental illness to take antipsychotic and other medications or to participate in some other form of treatment.

• The effectiveness of outpatient commitment has not been demonstrated. Over ten years ago, the Mental Health Policy Resource Center reviewed all the then existing research on outpatient commitment and concluded that the "studies provide almost no empirical evidence in support of the effectiveness of [involuntary outpatient commitment] laws vis-a-vis treatment compliance. Kathleen A. Maloy, Analysis: Critiquing the Empirical Evidence: Does Involuntary Outpatient Commitment Work? (1992)(italics in original). Research since 1992 has been no more conclusive. In fact, in an article in the March 2001 edition of Psychiatric Services, Dr. Henry Steadman and his colleagues, reporting on a study of a three year outpatient commitment pilot program in New York City, concluded that there were no differences in major outcomes between patients who received outpatient commitment and those who did not. Henry J. Steadman, et al., Assessing the New York City Involuntary Outpatient Commitment Pilot Program, 52 Psychiatric Services 330 (2001). In the same issue, Dr. Paul Appelbaum, a proponent of some forms of outpatient commitment, acknowledges that the all the existing data are imperfect and urges policy makers to think carefully about adopting outpatient commitment statutes. He warns that legislatures that do not provide new resources for active outreach and intensive service coordination when an outpatient commitment statute is passed, will be engaging in a sham effort unlikely to have any real impact on the care of the mentally ill. Paul Appelbaum, Thinking Carefully About Outpatient Commitment, 52 Psychiatric Services 347, 350 (2001).

• The threat of commitment may deter some people from seeking treatment on a voluntary basis. Although some states which have outpatient commitment schemes report that it is seldom used, others have experienced a significant rise in the number of people committed. Even if the system is seldom used, the mere threat of involuntary treatment is a deterrent to treatment. In one study, 48% of consumers interviewed had avoided mental health treatment on one or more occasions because they feared being involuntarily committed. Jean Campbell, In Pursuit of Wellness: The Well Being Project, Sacramento, CA Department of Mental Health, 1989. This and other practical dangers of outpatient commitment are explored by Michael Allen and Vicki Fox Smith in Opening Pandoras Box: The Practical and Legal Dangers of Involuntary Outpatient Commitment, 52 Psychiatric Services 342 (2001).

We urge the Committee not to recommend H. 3341.

2. S. 939  An Act relative to the civil commitment process for persons with mental illness. Last session, after nearly three years of careful consideration this Committee recommended and the General Court enacted the first meaningful reforms to the Commonwealths civil commitment procedures in nearly 30 years. The Committee has now received reports from the implementing agencies and the District Court and it is clear that the reform is working smoothly.

S. 393 seeks to amend the reform to, in effect, give the petitioning hospital a veto of the location of the hearing. The bill would require that unless the patient, the hospital and the judge all agree, commitment hearing would have to be held at the mental health facility. The law now allows for but does not require the hearing to be held at the hospital and, in fact, most are. However, some courts, including nearly all of the District Courts in Western Massachusetts, almost always hold civil commitment hearings at the courthouse. The experience of these courts convincingly demonstrates that such hearings are practical, efficient, and not contrary to the privacy interests of the persons subject to commitment petitions.

Representatives of the hospital industry lobbied unsuccessfully for a similar provision last year. At the public hearing on the bill, however, there was considerable testimony from persons who have been civilly committed. All of those who spoke publicly on the issue said that they and others whom they knew would prefer to have their hearings in a courtroom at a courthouse.

If S. 939 is enacted, Massachusetts will be out of step with the rest of the Nation. Indeed, many states provide the patient the option to request (or demand) a hearing at a courthouse. For instance, in Wisconsin the court may determine to hold the hearing at the hospital unless the individual or his attorney objects. Wisc. Stat. Ann.  51.20(5). Likewise, Michigan law states a preference for hearings at the hospital, but allows the person to request a change of venue. Mich. Mental Health Code  330.1456. North Carolina actually appears to have a statutory preference for courthouse hearings. N.C. Gen. Stat.  122C-268(g).

No model civil commitment statute with which we are familiar mandates hospital based hearings or prohibits a hearing in a courtroom. Indeed, the influential National Center on State Courts civil commitment guidelines suggest that [h]earings should be conducted in a regular courtroom or, alternatively, in a room at a mental health facility. National Center for State Courts, Guidelines for Involuntary Civil Commitment, 10 Mental & Physical Disability L. Rep. 409, 481 (1986)(emphasis added). Dr. Alan Stones model law, widely disseminated by the American Psychiatric Association, would require a hearing to be held at facilities only when[] feasible given the other functions of the court. Clifford D. Stromberg & Alan A. Stone, Model State Law on Civil Commitment of the Mentally Ill, 20 Harv. J. on Legislation 275 (1983) reprinted in Issues in Forensic Psychiatry, Am. Psychiatric Press (1984).

We urge the Committee not to recommend S. 939.

Thank you.

Sincerely,

Robert D. Fleischner

Coalition for the Legal Rights of People with Disabilities

Center for Public Representation

Jennifer Honig, CLRD Co-Chair