The Policy of NAMI/NYS and NAMI/NYC
as adopted by their respective boards
It is vital to respect the rights of consumers to make their own decisions to the maximum degree that is feasible. But it must also be recognized that, in neurobiological disorders (NBD), the diseased organ is the brain, and the judgement of consumers is occasionally affected by the disease so that they are unable to make the decisions to promote their own welfare that they would make if their judgement was unclouded. The law must address this reality.
In NYS, the dangerousness standard is currently being successfully used as a weapon to prevent seriously ill people from being treated. P&A recently brought class action against Benedictine Hospital, arguing that the hospital was committing patients who were not at the moment of commitment provably actively dangerous. P&A took the position that committing patients on the grounds they were psychotic and had a history of psychiatric deterioration when untreated was not permitted by law.
P&A won the suit, which means unless the law is changed, public, as well as private hospitals will be able to commit patients only if they are immediately provably dangerous. In light of this, and in light of the ways in which NYS law lags behind a number of other states in dealing with the needs of the mentally ill, NAMI/NYC adopts the following policy:
Resolved, that NAMI/NYC will work to achieve changes in the law in the following four areas:
1. Implement a form of outpatient commitment.
NYS is the only state that makes commitment synonymous with inpatient commitment, thus excluding the possibility of outpatient commitment as an alternative. This could substantially cut down on the need for costly inappropriate hospitalizations, and therefore lead to greater freedoms and fewer restrictions for consumers.
There are several states whose laws could serve as models in this area, including Wisconsin and North Carolina.
2. Change the inpatient commitment standard to allow those who need care to receive it.
The current standard of “danger to self or others” (generally interpreted to mean “imminently” dangerous to self or others) is not based on scientific understanding of NBD; has proven to be unenforceable; prevents too many people from getting needed care; and has been interpreted in widely different ways by different courts. It must therefore be changed. NAMI/NYC will work in favor of changing the law in any one of the following ways:
A. Adding a “Grave Disability” Standard.
This is the approach taken in the Spano Bill. Kansas provides an excellent model (the bill was passed a few years ago as a result of advocacy by Kansas AMI). “Dangerousness” is defined as “likely to cause harm to self or others” and is satisfied by a finding that the mentally ill person is “substantially unable, except for reasons of indigency, to provide for any of the person’s basic needs, such as food, clothing, shelter, health or safety causing a substantial deterioration of the person’s ability to function on the person’s own”.
B. Adding a “Need for Treatment” Standard.
In Saskatchewan (Canada) commitment is allowed if: “The person is suffering from a mental disorder as a result of which he is in need of treatment or care and supervision which can be provided only in an inpatient facility; (or) as a result of the mental disorder the person is unable to fully understand and to make an informed decision regarding his need for treatment or care and supervision (and) as a result of the mental disorder, the person is likely to cause harm to himself or others or to suffer substantial mental or physical deterioration if he is not detained in an in-patient facility.” This would be an acceptable model as well.
In addition, NAMI/NYC will work to preserve the two psychiatrist commitment procedure which is a valuable feature of New York State law.
NAMI/NYC recognizes that creating a better standard will not mean there are automatically facilities to care for all those needing treatment under the standard. But the absence of the standard means that even when treatment facilities are available, the care can not be provided.
3. For individuals committed through court procedures, NAMI/NYC believes the questions of commitment and treatment should be decided in a single hearing at the time of commitment.
This would prevent patients from being warehoused unnecessarily, sometimes for months, while they wait for second hearing on whether they should be treated and will allow the patient to get on the road to recovery faster. Wherever possible, the family should be brought in to cooperate with doctors in making substitute treatment decisions for the patient. Utah provides a good model for such a combined hearing at the time of commitment.
Patients committed under the two psychiatrist procedure who object to receiving treatment should receive their “Rivers” hearing as soon as possible.
4. Past activity should be considered in determining future course of illness.
Medical science has clearly shown that past activity and progression of the illness is the best predictor of future activity and progression of the illness. Many consumers exhibit predictable stages of deterioration. Yet most courts rule this evidence of past progression of the illness is inadmissible, under the “one punch” or “single shot” rule. NAMI/NYC believes that past history must be one of the factors considered in commitment and right to refuse treatment procedures.
Adopted by NAMI/NYC and NAMI/NYS.