A National Survey of the Use of Outpatient Commitment
By E. Fuller Torrey, M.D. and Robert J. Kaplan, J.D.
Psychiatric Services August 1995, Vol. 46, No. 8Reprinted by permission. Note: This is a 1995 study. As of 2013 at least 43 states have AOT laws although few make appropriate use of them.
Objective: To determine the extent of use of outpatient commitment, a survey was undertaken of each state and the District of Columbia.
Methods: One of the authors, an attorney, reviewed pertinent state statutes, then conducted telephone interviews with individuals in each state who were knowledgeable about the use of outpatient commitment.
Results: Thirty-five states and the District of Columbia have laws permitting outpatient commitment. Georgia, Hawaii, and North Carolina use different criteria for outpatient commitment than for inpatient commitment. In only 12 states and the District of Columbia was use of outpatient commitment rated as very common or common. Reasons for not using it include concerns about civil liberties, liability, and fiscal burden as well as lack of information and interest, the failure of some states to set enforceable consequences for noncompliance, and criteria that are too restrictive. Some states use alternative formal or informal mechanisms to encourage treatment compliance; conditional release is widely used in New Hampshire and conservatorship-guardianship in California. Within many states the availability of outpatient commitment varies considerably by locale.
Conclusions: To clarify the role of outpatient commitment in psychiatric services, more research is needed to identify optimal candidates for its use. Research is also needed on its overall effectiveness compared with conditional release and conservatorship-guardianship and on the consequences of not using such mechanisms to improve treatment compliance. (Psychiatric Services 46:778-784, 1995)
Outpatient commitment is a form of civil commitment in which the court orders an individual to comply with a specific outpatient treatment program. The legal authority for outpatient commitment is the state's parens patriae power, which provides for protection of disabled individuals, and its police power, which involves protection of others.
Although outpatient commitment has been used in some states for more than 20 years, it has generated increasing controversy in recent years. On one side are proponents who argue that outpatient commitment decreases the time individuals must spend in psychiatric hospitals, improves the quality of their lives, increases the likelihood of their rehabilitation, and frees them of debilitating symptoms of their illness. On the other side are opponents who argue that outpatient commitment is thinly veiled benevolent coercion, which entails excessive state intrusion, interferes with the right to refuse treatment, undermines the therapeutic relationship, and has broad potential for abuse (1).
In light of the increasing interest in this form of civil commitment, a survey was undertaken in 1994 of outpatient commitment and how it is used in each state and the District of Columbia.
Background Outpatient commitment has emerged as a prominent issue as a direct result of deinstitutionalization in the United States. In 1955 more than 559,000 persons were in state psychiatric hospitals; however, by 1992 the total had fallen to 83,320 (2). In 1992 the U.S. population was 258 million. If the proportion of state hospital patients had remain unchanged since 1966, when the population was 166 million, inpatients in 1992 would have numbered 869,000. Even taking into account former state hospital patients who are now in psychiatric wards of general hospitals and aftercare facilities (crisis houses or institutions for mental disease), it appears that approximately 750,000 individuals are now living in the community who 40 years ago would likely have been inpatients in state psychiatric hospitals.
Outpatient commitment has evolved as an attempt to compel psychiatric treatment for a subgroup of individuals living in the community who in the past would have been inpatients. This form of commitment is used most commonly for persons with schizophrenia, bipolar disorder, or other psychoses (3), especially those who are noncompliant with medication and who have had multiple inpatient psychiatric admissions. Medication noncompliance rates for outpatients with serious mental illnesses have been reported to be as high as 63 percent (4); a careful study by Weiden and associates (4) of outpatients with schizophrenia found that ``at any given follow-up interval 30 percent to 40 percent of the subjects were non-compliant.''
Noncompliance with medication is most commonly the result of side effects associated with antipsychotic medications, a poor doctor-patient relationship, or the individual's lack of insight into the underlying illness (5-8). In one study, Amador and Strauss (9) found that "nearly 60 percent of the patients with schizophrenia had moderate to severe unawareness of having a mental disorder." In another study of outpatients with mixed psychoses, David and associates (10; David A, personal communication, 1995) reported that 52 percent scored 9 points or less on an 18-point scale measuring insight. A recent study suggests that lack of insight among persons with schizophrenia is associated with frontal lobe dysfunction and therefore has a biological basis (11).
One frequent and predictable consequence of medication noncompliance among psychiatric patients is relapse and rehospitalization. The revolving-door syndrome has become routine in most state psychiatric hospitals, and one paper reported that an individual patient had been readmitted 121 times (12). In addition, studies have found that 27 percent (13) and 36 percent (14) of patients discharged from state psychiatric hospitals became homeless within six months of discharge, and in another study 32 percent of discharged patients were arrested and jailed within six months (15).
Families of seriously mentally ill individuals have become increasingly outspoken about their inability to obtain psychiatric care for ill family members who refuse medication. All of these social and political pressures have contributed to the increasing interest in outpatient commitment.
Conditional release and conservatorship-guardianship. Outpatient commitment should be distinguished from both conditional release and conservatorship-guardianship, two alternative mechanisms that are used to coerce compliance with outpatient treatment programs in some states. Under a conditional release, the discretion to allow release for outpatient treatment is vested in the hospital superintendent rather than the court. Also, most patients on conditional release remain on the hospital rolls, which has implications for both hospital liability and patients' eligibility for some federal support programs.
Conservatorship-guardianship gives authority to a third party appointed by the court to consent for the mentally ill individual to undergo outpatient treatment. The conservator or guardian can legally compel a person with serious mental illness to comply with an outpatient treatment program or involuntarily hospitalize the person if he or she does not comply. Conservatorship-guardianship is also legally distinct from outpatient commitment and conditional release because it is based on substituted consent, whereas outpatient commitment and conditional release are founded on civil commitment. Conservatorships have been widely used in California and are reported to be highly effective (16,17).
Past studies of outpatient commitment
Outpatient commitment has been most comprehensively examined in North Carolina, which has emerged as a leader in implementing this form of civil commitment. In one study of patients assigned to outpatient commitment rather than inpatient status, only 10 percent of those assigned to outpatient commitment had to be transferred to inpatient status within three months (18).
A study of all 4,140 individuals assigned to outpatient commitment in North Carolina over a three-year period reported that hospital admissions per individual fell from an average of 3.7 admissions during the three years before outpatient commitment to .7 admissions for the three years after commitment (20). Length of hospital stay was also significantly reduced. Another study found that individuals on outpatient commitment were significantly more likely to keep appointments at mental health centers and to remain in treatment during the commitment period (19,20).
One of the most important findings to emerge from the North Carolina studies was the critical role played by mental health professionals and community mental health centers (CMHCs) in the effectiveness of any outpatient commitment program. Hiday and Scheid-Cook (19) labeled "the extent of CMHC dedication" as "one of the most important variables in outpatient commitment success." They reported that some mental health centers ignored or even sabotaged outpatient commitment orders, while others enthusiastically supported the commitments.
The American Psychiatric Association's task force report Involuntary Commitment to Outpatient Treatment also noted that "recent studies have demonstrated that many community-based centers prefer not to deal with noncompliant patients" (21). Miller and Fiddleman (22) also described wide variations in CMHC enthusiasm for outpatient commitment and noted that "during the task force hearings on the proposed changes in the North Carolina statutes, the major objections came from CMHC directors who did not want to be forced to treat committed patients."
Studies of outpatient commitment have also been carried out in the District of Columbia, Arizona, and Tennessee. In the District of Columbia, where outpatient commitment has been widely used since 1972, a study reported that it reduced readmissions by half and also shortened inpatient stays (23,24). In Arizona, outpatient commitment was reported to keep patients in treatment longer, shorten inpatient stays, and possibly reduce violent episodes; no violent episodes were reported among the study population during the six- month study period, but four episodes occurred in the six-month postcommitment period (25).
On the other hand, a study by Bursten (26) found that outpatient commitment in Tennessee had no effect on readmission rates over a 14-month period. It should be noted, however, that Tennessee has no consequences for noncompliance with outpatient commitment, and it has been debated whether the approach used in Tennessee technically qualifies as outpatient commitment (see the results section). In addition, Bursten noted that there were indications "that the outpatient clinics are not vigorously enforcing the law." In light of the findings in North Carolina, this factor may explain the lack of effectiveness reported in Tennessee.
Previous surveys of state outpatient commitment laws have been reported by Keilitz and Hall in 1985 (27), Schwartz and Constanzo in 1987 (28), and McCafferty and Dooley in 1990 (29). In addition, Miller sent questionnaire surveys about outpatient commitment to state mental health directors and state attorneys general in 1984 (30) and again in 1990 1991 (31). However, these surveys by Miller must be interpreted with caution because many of the directors were apparently unaware of the availability and application of outpatient commitment in their states.
In early 1994 one of the authors, an attorney, thoroughly reviewed state statutes concerning outpatient commitment and then conducted telephone interviews with selected individuals in each state and the District of Columbia. Questions were designed to gather information on outpatient civil commitment proceedings. Not considered in the survey were procedures involved when individuals are criminally charged, found incompetent to stand trial, or found not guilty by reason of insanity.
Individuals to be interviewed in each state were selected based on their knowledge of outpatient commitment statutes and the use of outpatient commitment in that state. Attorneys in the state office of mental health and officials of the state Alliance for the Mentally Ill in each state were the initial contacts. In some states, the most knowledgeable individuals were private attorneys or clinicians working in public psychiatric facilities. At least two knowledgeable persons were interviewed in each state, and all were given assurances that no one would be identified in any publication. In light of Miller's 1984 survey (30), in which he reported a remarkable lack of agreement about outpatient commitment between the mental health director and the attorney general in several states, we did not assume that these individuals were necessarily the best sources of information.
The interview was open ended and centered on several primary questions:
Does the state have a statute authorizing outpatient commitment? If not, is conditional release or conservatorship-guardianship used to coerce outpatient treatment compliance?
Are the criteria for outpatient commitment the same as or different from those for inpatient commitment?
Is prior hospitalization (either immediately preceding outpatient commitment or at some point in the past) required for outpatient commitment?
What is the maximum duration of outpatient commitment?
How frequently is outpatient commitment used? If it is not used frequently, why not?
In general, are state officials, mental health professionals, and families of patients satisfied with outpatient commitment or its alternative?
What is the remedy for noncompliance?
Are there any statutory changes on the horizon?
We readily acknowledge that some of these questions required subjective answers (for example, the question about satisfaction) or estimates (for example, the question about frequency of use). Nevertheless, we felt that these preliminary data may be useful to identify challenges to outpatient commitment as it is currently used and to develop areas for further research.
As the interviews were conducted, it soon became apparent that generalizations about any single state must be limited. The legal availability of outpatient commitment often varies considerably in different regions of a state, depending on judges or mental health centers in each region. In Tennessee, it is even debatable whether an outpatient commitment statute actually exists. Tennessee has a provision for "mandatory outpatient treatment" that requires a court order, a process that has some similarity to outpatient commitment. However, it is available only to patients being released from a psychiatric hospital, must be recommended by the hospital superintendent, and is supervised by the hospital superintendent. In this respect the Tennessee law appears to be more closely related to conditional release than to outpatient commitment.
It also became apparent during the interviews that conditional release is used as an alternative to outpatient commitment in many states. However, because implementation of conditional release depends on the superintendent and staff of each hospital, its use may vary significantly by hospital within a state. Conditional release has several advantages over outpatient commitment: the legal authority for conditional release is more widely accepted, supervision is controlled by the staff of the facility where the person was hospitalized, and the consequences of noncompliance (rehospitalization) are usually easier to implement.
For example, in New Hampshire conditional release is almost always used in place of outpatient commitment even though the state has an outpatient commitment statute. New Hampshire permits conditional release to be implemented and monitored not only by the superintendent of the state hospital but also by the administrator of any designated "receiving facility," including psychiatric wards of general hospitals and crisis centers. Conservatorship-guardianship is commonly used in California to coerce outpatient treatment compliance. California does not have an explicit outpatient commitment statute.
Conservatorship-guardianship is available in several other states (for example, Massachusetts and New Mexico) but is not frequently used. In addition to formal outpatient commitment, conditional release, and conservatorship-guardianship, several interviewees described informal mechanisms for motivating voluntary compliance with medication treatment programs. Some states (for example, Kentucky, Oregon, and Wyoming) allow judges to suspend an inpatient commitment hearing on the condition that the individual undergo voluntary outpatient treatment. If the person is noncompliant, the hearing can be resumed and an inpatient commitment is likely to ensue. Interviewees in some states (for example, Rhode Island, Virginia, and Vermont) said that "judicial wrath," a stern lecture by a judge on the necessity of treatment, is sometimes effective in producing compliance with an outpatient treatment plan. Other interviewees said that the threat of inpatient commitment was occasionally used to compel outpatient compliance. Geller (32) provides a brave description of the use of this quasilegal stratagem in Massachusetts.
Interviewees in some states reported that when noncompliant patients are arrested on misdemeanor charges, mental health center staff usually work with the courts and use the period of probation as a means to compel medication compliance. Finally, when a case manager or mental health center is the representative payee of an entitlement, such as Supplemental Security Income, for an individual with serious mental illness, it is common in some areas to make compliance with outpatient treatment a condition of receiving payment. Geller (33) cited the recent case of a man with borderline mental retardation and epilepsy in which the U.S. Third Circuit Court of Appeals upheld such an arrangement.
Thirty-five states and the District of Columbia have statutes permitting formal outpatient commitment. This number reflects an increase since 1988, when 26 states and theDistrict of Columbia permitted it (28). Thus nine states have added statutes authorizing outpatient commitment or have found authority for outpatient commitment within the existing commitment law
The 15 states that have no statute covering outpatient commitment are California, Connecticut, Florida, Idaho, Kentucky, Maine, Maryland, Massachusetts, Missouri, Nevada, New Jersey, New Mexico, New York, Tennessee, and Wyoming. New York is the only state that had a statute specifically prohibiting outpatient commitment; however, in 1994 legislation was passed permitting a pilot program of outpatient commitment that initially will be available only in Manhattan. In Florida, Maine, Missouri, and Nevada outpatient commitment legislation has recently been considered.
Table 1 lists the states with statutes that allow outpatient commitment and provides information about whether criteria for outpatient commitment are the same as or different from criteria for inpatient commitment. Also listed is the maximum duration of a commitment before it must be renewed and an estimate of the frequency of use.
Alabama, Georgia, Hawaii, and North Carolina have independent criteria for outpatient commitment that in practice are more liberal than criteria for inpatient commitment. This difference can occasionally cause problems when an individual on outpatient commitment fails to comply with a treatment plan and should therefore be hospitalized but does not meet criteria for involuntary hospitalization.
Georgia is the only state that requires an individual to be committed to inpatient treatment before an outpatient commitment can be ordered. Hawaii requires that an individual considered for outpatient commitment must either have had a previous (lifetime) psychiatric hospitalization, be imminently dangerous to self or others, or be gravely disabled. In Michigan, hospitalization followed by outpatient commitment is required for persons found to be committable to inpatient care who have been committed to a hospital at least twice within the past two years Michigan code sec. 14.800(468) (4).
Duration of treatment
In states that specify a maximum duration of outpatient commitment, duration periods are generally 180 days (in 17 states) or 365 days (12 states); two states, Ohio and West Virginia, specify a two-year period, and in New Hampshire outpatient commitment can be ordered for five years. Three states (Indiana, Utah, and Vermont) allow an individual to be committed indefinitely to outpatient treatment. In almost all states, the order can be renewed.
Frequency of use
In six states and the District of Columbia interviewees estimated that use of outpatient commitment is very common; use is common in seven states, occasional in two, and rare in 13 states.
Interviewees in eight states estimated that its use is very rare
Reasons for not using outpatient commitment options. Interviewees in states where outpatient commitment or a similar alternative is available but used only rarely or very rarely gave many reasons for this situation, which could be organized into eight areas of concern.
Several interviewees noted the reluctance of mental health professionals to assume the policing function inherent in outpatient commitment. Mental health professionals are, as a group, politically liberal (34) and dedicated to increasing individual autonomy. To require patients to comply with involuntary treatment plans or threaten them with rehospitalization is contrary to the ideological beliefs of many professionals. Silver (35) recently noted this problem: "Most community-based providers of mental health services do not relish the role of parole agent. "
Many mental health professionals and mental health centers have concerns about liability if individuals who are committed as outpatients under their supervision commit crimes. States in which this issue is especially vexing include Alabama, Colorado, Indiana, Minnesota, Tennessee, Texas, and Virginia. Some states, such as North Carolina, have addressed liability concerns by providing liability coverage for mental health centers as part of the original legislation creating outpatient commitment.
Lack of interest
Many interviewees noted that some mental health centers in their states showed a relative lack of interest in treating individuals with serious mental illnesses.
Several interviewees stated that monitoring outpatient commitment requires mental health centers to hire additional staff, which increases their fiscal burden. This reasoning was especially prominent in states that have relatively low per capita expenditures for state mental health services, such as Illinois and Texas. In a few states (for example, Minnesota), individuals who are committed as inpatients are the fiscal responsibility of the state, but those committed as outpatients are the fiscal responsibility of the counties, creating a further disincentive to use outpatient commitment. Some states in which outpatient commitment is being used allocate a predetermined amount of state funds to mental health centers for each outpatient committed under their supervision regardless of placement status. North Carolina is one state that uses this method.
Lack of hospital beds
Some interviewees expressed concern that outpatient commitment would lead to an increased demand for inpatient beds if the committed individuals were not compliant with their treatment programs. This issue is important in states that are downsizing state hospitals and where psychiatric beds are in short supply.
However, as noted above, previous studies of outpatient commitment suggest that it is more likely to lead to a decreased demand for inpatient beds.
Overly stringent criteria
In states in which the commitment criteria are most restrictive or are applied restrictively, outpatient commitment is less likely to be used. States in which outpatient commitment is more common tend to have less restrictive commitment criteria, such as the "gravely disabled" criterion. In the few states in which outpatient commitment is used very commonly, the criteria are the least restrictive.
For example, in Wisconsin, where use is very common, the basic criterion is "unable to provide for basic needs." In South Carolina, an individual who ``lacks sufficient insight or capacity to make responsible decisions with respect to his treatment'' may be committed as an outpatient, thus incorporating the concept of insight into the commitment law.
Lack of consequences
Numerous states with outpatient commitment laws have failed to specify the consequences for noncompliance with the treatment plan, and several interviewees cited the lack of consequences as a reason for not using outpatient commitment. In these states, rehospitalizing an individual who is on outpatient commitment often involves cumbersome and time-consuming procedures.
In some states, involuntary medication of the individual is not permitted under outpatient commitment unless a separate court order is obtained. Even the outpatient commitment guidelines promulgated by the American Psychiatric Association in 1987 (21) recommended against involuntary medication of individuals on outpatient commitment.
One critic labeled this recommendation "inconsistent and weak-kneed" (36), but a member of the APA task force defended it as consistent with "clinical as well as political realities" (37). Clear consequences for noncompliance have been established in most states where outpatient commitment is used regularly. In some states (for example, Virginia, Washington, and Wisconsin), an "order to treat," which permits involuntary medication, is included as part of an outpatient commitment order in many cases.
It should be added that the absence of consequences for noncompliance is not necessarily an oversight. As Miller (31) astutely noted: "As legislatures debated establishing provisions for outpatient commitment, libertarians, concerned with the potential for a wider net of social control, often compromised by accepting the basic principles of outpatient commitment while preventing the establishment of procedures such as initial commitment to outpatient treatment, adoption of less strict criteria for outpatient commitment than for inpatient commitment, and use of physical coercion in administration of medication to outpatients."
Lack of information
In Miller's 1984 survey of state mental health directors and state attorneys general (30), he found that in 26 percent of states these two individuals did not agree on the basic question of whether outpatient commitment was permitted. In the survey reported here, interviewees suggested that a lack of awareness and knowledge about outpatient commitment is still very prevalent in many states among state officials, mental health centers, consumers, and families.
Finally, based on the interviews, an overall assessment was made of whether state officials, mental health professionals, and families of patients were generally satisfied with outpatient commitment and its alternatives in each state. Such generalizations are problematic because, as noted above, tremendous variation can exist within single states; people in one county may be quite satisfied, while those in an adjacent county may be completely dissatisfied.
Given this caveat and the further limitation that in some states only two knowledgeable persons were interviewed, it appears that people are most satisfied with outpatient commitment or its alternatives in 13 states and the District of Columbia. The states are Arizona, California (with conservatorships), Iowa, Kansas, Michigan, Nebraska, New Hampshire (with conditional release), North Dakota, Rhode Island, Utah, Vermont, Washington, and Wisconsin.
In eight other states, some indications of satisfaction were noted, but they were accompanied by expressions of dissatisfaction about major impediments to the full utilization of outpatient commitment. The eight states were Delaware, Georgia, Kentucky, Maryland, North Carolina, Ohio, Pennsylvania, and South Carolina. In the other 29 states, there appeared to be widespread dissatisfaction with the present use of outpatient commitment and its alternatives.
Outpatient commitment appears to be used remarkably infrequently in the United States despite laws permitting it in 35 states and the District of Columbia and preliminary studies suggesting that it both improves treatment outcomes and decreases rehospitalization. It is clear that legislation authorizing outpatient commitment is not in itself sufficient to establish an effective outpatient commitment program. The legislation must also specifically address issues such as liability, fiscal support, and fiscal incentives and establish clear consequences for noncompliance. Many of the outpatient commitment laws now in effect amount to nothing more than paper tigers without teeth.
Outpatient commitment is also unlikely to be used or useful in states that require an individual to be judged dangerous before civil commitment can be obtained. By the time an individual with a serious mental illness has become dangerous, that person has often passed the point at which outpatient commitment is the appropriate placement alternative.
Such a requirement defeats the purpose of outpatient commitment. Most important, it is apparent that outpatient commitment is merely one piece of the spectrum of outpatient psychiatric services. As Applebaum noted in 1986 (38), it holds "a great deal of promise for the problems of an important group of chronic mentally ill persons." However, unless a system is dedicated to treating this patient population, that promise cannot be achieved. If states are more interested in discharging patients than in ascertaining what happens to them after discharge, if mental health centers are not willing to accept responsibility for these patients, and if most mental health professionals avoid involvement in monitoring compliance with outpatient commitment, then it will not be effective.
As Silver (35) noted, "Outpatient civil commitment may really affect provider behavior more significantly than patient behavior. We're not committing the patient, really, but rather the entire mental health community to be more accountable, to do the job well, to find somehow a treatment alliance with the patient."
Although outpatient commitment is a potentially useful mechanism for improving treatment compliance and decreasing rehospitalizations, it remains widely underutilized. More research is needed to develop criteria that will effectively identify optimal candidates for this form of civil commitment. An excellent start in this direction was made by Geller in 1990 (39), who outlined clinical guidelines for use of outpatient commitment. Especially helpful in this regard would be further operationalization of scales that measure patients' insight in general and patients' self-perceived need for medication in particular (40).
Additional studies of treatment noncompliance would be useful (4). Research is also needed on the overall effectiveness of outpatient commitment compared with alternatives such as conditional release and conservatorship-guardianship. This research should measure patient outcomes that indicate quality of life, such as employment, housing, and friendships (41). Equally important is the need for research on the consequences of not using outpatient commitment or its alternatives to improve treatment compliance. This research should include measures of time spent in jail, homelessness, suicide, and episodes of violence committed both by and against the person. Such studies will clarify the role that outpatient commitment should play in psychiatric services. As Keilitz concluded (42) after reviewing studies of outpatient commitment, "Now may be the time to look to empiricism for answers."
The authors are indebted to the many individuals who responded to the telephone survey and to Ronald S. Honberg, J.D., for guidance. The survey was supported by the Theodore and Vada Stanley Foundation.
1Mulvey EP, Gelber JL, Roth LH: The promise and peril of involuntary
outpatient commitment. American Psychologist 42:571 584, 1984
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