Constitutional Challenges to Kendra’s Law show it is constitutional.

Source of article: Brennan, K. J. (2009). Kendra’s Law: Assisted Outpatient Treatment in New York. Unpublished revision of Brennan, K. J. (2005). Kendra’s Law: Final Report on the Status of Assisted Outpatient Treatment Appendix 2)

(Editors note: The state has two responsibilities. The first is to help those who can’t help themselves. This power is often used to help abused childrens, people in a coma, those with alzheimers and results in getting treatment and care. The second state responsibility is to prevent people from harming others (police powers). This is used to prevent crime. It often results in people going to jail. In reviewing these two state responsibilities courts have determined that AOT is an appropriate exercise of the state’s responsibilities and AOT is constitutional.)


On January 3, 1999, an event occurred which galvanized the mental health community, and served as a catalyst for an effort to identify and address the needs of the small population of persons who respond well to treatment when hospitalized, but who have trouble maintaining their recovery once back in the community. On that date, Andrew Goldstein, a man with a history of mental illness and hospitalizations, pushed Kendra Webdale onto the subway tracks in a tunnel beneath the streets of Manhattan. Ms. Webdale lost her life as a result. What followed was a bi-partisan effort, led by Governor George Pataki, to create a resource delivery system for this population, who, in view of their treatment history and present circumstances, are likely to have difficulty living safely in the community.1 Kendra’s Law was scheduled to sunset, or expire, on June 30, 2005, absent legislative action to extend the law in its original or amended form. Shortly before the law expired, the legislature re-enacted the law. The statutory scheme is largely unchanged, but there were a few substantive changes, which are incorporated into the discussion of the appropriate statutory provisions. 2

On August 9, 1999, Governor Pataki signed Kendra’s Law, creating a statutory framework for court-ordered assisted outpatient treatment (“AOT”), to ensure that individuals with mental illness, and a history of hospitalizations or violence, participate in community-based services appropriate to their needs.3 The law became effective in November of 1999. Since that time, 7624 court orders have been issued for AOT statewide, together with 4189 renewal orders.4 The majority of orders and renewals have been issued in New York City.  The statute creates a petition process, found in Mental Hygiene Law (“M.H.L.”) section 9.60, designed to identify those persons who may not be able to survive safely in the community without greater supervision and assistance than historically has been available. A description of many aspects of the petition process follows, and is in turn followed by a review of some of the more important court decisions concerning Kendra’s Law.

Filing the Petition

Kendra’s Law establishes a procedure for obtaining court orders for certain patients to receive and accept outpatient treatment.5 The prescribed treatment is set forth in a written treatment plan prepared by a physician who has examined the individual.6 The procedure involves a hearing in which all the evidence, including testimony from the examining physician, and, if desired, from the person alleged to need treatment, is presented to the court.7 If the court determines that the individual meets the criteria for assisted outpatient treatment (“AOT”), an order is issued to either the director of a hospital licensed or operated by the Office of Mental Health (“OMH”), or a director of community services who oversees the mental health program of a locality (i.e., the county or the City of New York mental health director). The initial order is effective for up to six months8 and can be extended for successive periods of up to one year.9 Kendra’s Law also provides a procedure for the removal of a patient subject to a court order to a hospital for evaluation and observation, in cases where the patient fails to comply with the ordered treatment and poses a risk of harm.10 The process for issuance of AOT orders begins with the filing of a petition in the supreme or county court where the person alleged to be mentally ill and in need of AOT is present (or is believed to be present). The following may act as petitioners:11

  • 1.) an adult (18 years or older) roommate of the person;
  • 2.) a parent, spouse, adult child or adult sibling of the person;
  • 3.) the director of a hospital where the person is hospitalized;
  • 4.) the director of a public or charitable organization, agency or home that provides mental health services and in whose institution the person resides;
  • 5.) a qualified psychiatrist who is either treating the person or supervising the treatment of the person for mental illness;
  • 6.) the director of community services, or social services official of the city or county where the person is present or is reasonably believed to be present;
  • 7.) a licensed psychologist, or a licensed social worker, who is treating the subject of the petition for a mental illness; or
  • 8.) a parole officer or probation officer assigned to supervise the person.12

The petition must include the sworn statement of a physician who has examined the person within ten days of the filing of the petition, attesting to the need for AOT.13 The examining physician must be appointed by the director of community services, and must develop a written treatment plan, in consultation with such director, which is submitted as part of the petition. All service providers listed in the written treatment plan must receive of their inclusion.  If the examining physician’s attempts to examine the subject of the petition are unsuccessful, the affidavit may state that unsuccessful attempts were made in the past ten days to obtain the consent of the person for an examination, and that the physician believes AOT is warranted. If the court finds reasonable cause to believe the allegations in the petition are true, the court may request that the patient submit to an examination by a physician appointed by the court, and ultimately may order peace officers or police officers to take the person into custody for transport to a hospital for examination by a physician. Any such retention shall not exceed twenty-four hours.14 The petitioner must establish by clear and convincing evidence that the subject of the petition meets all of the following criteria:

  • 1.) he or she is at least 18 years old; and
  • 2.) is suffering from a mental illness; and
  • 3.) is unlikely to survive safely in the community without supervision; and
  • 4.) has a history of lack of compliance with treatment for mental illness that has:

    (a) at least twice within the last 36 months been a significant factor in necessitating hospitalization or receipt of services in a forensic or other mental health unit in a correctional facility or local correctional facility, not including anycurrent period, or period ending within the last six months, during which the person was or is hospitalized or incarcerated, or

    (b)      resulted in one or more acts of serious violent behavior toward self or others, or threats of or attempts at serious physical harm to self or others within the last 48 months, not including any current period, or period ending within the last six months, during which the person was or is hospitalized or incarcerated; and

  • 5.) is, as a result of his or her mental illness, unlikely to voluntarily participate in the recommended treatment pursuant to the treatment plan; and
  • 6.) in view of his or her treatment history and current behavior, the person is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to self or others; and
  • 7.) it is likely that the person will benefit from assisted outpatient treatment; and
  • 8.) if the person has executed a health care proxy, any directions included in such proxy shall be taken into account by the court in determining the written treatment plan.15

In addition, a court may not issue an AOT order unless it finds that assisted outpatient treatment is the least restrictive alternative available for the person.16 Notice of the petition must be served on a number of people or entities, including the person, his or her nearest relative, and the Mental Hygiene Legal Service (“MHLS”), among others.17 The court is required to set a hearing date that is no more than three days after receipt of the petition, although adjournments can be granted for good cause.18 If the court finds by clear and convincing evidence that the subject of the petition meets each of the criteria and a written treatment plan has been filed, the court may order the subject to receive assisted outpatient treatment. The order must specifically state findings that the proposed treatment is the least restrictive treatment that is appropriate and feasible, must include case management or Assertive Community Team services and must state the other categories of treatment required.

The court may not order treatment which is not recommended by the examining physician and included in the treatment plan.19 Appeals of AOT orders are taken in the same manner as specified in M.H.L. section 9.35 relating to retention orders.20 If in the clinical judgment of a physician the assisted outpatient has failed or refused to comply with the treatment ordered by the court, efforts must be made to achieve compliance. If these efforts fail, and the patient may be in need of involuntary admission to a hospital, the physician may request the director of community services, his designee, or other physician designated under section 9.37 of the M.H.L. to arrange for the transport of the patient to a hospital. If requested, peace officers, police officers or members of an approved mobile crisis outreach team must take the patient into custody for transport to the hospital. An ambulance service may also be used to transport the patient. The patient may be held for up to 72 hours for care, observation and treatment and to permit a physician to determine whether involuntary admission under the standards set forth in Article 9 of the M.H.L. is warranted.21 If, during the 72-hours a determination is made that the patient does not meet the standard for inpatient hospitalization, then the patient must be released immediately.

When a patient subject to an AOT order meets the standard for removal from the community forexamination under this subdivision, and the director of community services responsible for his or her care and treatment has ordered such removal, but the assisted outpatient has been located in another county, language added by the 2005 legislation authorizes the director of community services in the county where the assisted outpatient has been located to direct the removal of the patient.

The legislation also provides for the exchange of clinical information pertaining to AOT patients, and that hospitals and local government officials may share confidential patient information, in certain circumstances where such sharing is necessary to facilitate AOT.22 Subdivision 9.60(k) permits a local Director of Community Services to file petitions for additional periods of treatment under this section.23 Such petitions must be filed within thirty days prior to the expiration of an order. The filing of such a petition automatically stays the expiration of an order for assisted outpatient treatment. Orders for additional treatment may be for periods up to one year.

Legal Developments

Since the legislation became effective, New York courts have addressed a number of issues related to the statute, and have rendered decisions regarding the constitutionality of the statute, as well as decisions construing statutory provisions concerning the criteria for AOT orders, and the evidentiary standard under the statute.

Constitutional Challenges

Kendra’s Law was signed into law by Governor George Pataki on August 9, 1999, and became effective on November 9, 1999. Even before the law was implemented, there emerged a focused debate concerning the issue of whether the law achieved its goal of creating a mechanism to insure that individuals who met the statutory criteria remained treatment compliant while in the community, in a way that was consistent with the Constitutional rights of those individuals.

On one side of the debate, proponents of the law recognized the numerous procedural aspects of the law which were included specifically to meet constitutional standards, many of which were deliberately modeled after other provisions of the Mental Hygiene Law, and which themselves had survived prior judicial scrutiny and had been found to be constitutional. The supporters of the law argued that any compulsion occasioned by the law was justified by the law’s important objective of helping individuals with a history of treatment non-compliance resulting in violent acts and/or repeated hospitalization to live safely in the community.  On the other side of the debate, opponents of the law primarily relied upon prior judicial decisions which found that forcible medication over objection required a finding of incapacity.  The opponents of the law read into these decisions a much broader proscription of any measures which might influence an individual’s decision to comply with treatment, even when those measures fall far short of forcible medication over objection.

This theoretical debate would not be resolved without judicial intervention and inevitably found its way into the courts. In In re Urcuyo,24 the first court challenge to the constitutionality of Kendra’s Law, the Mental Hygiene Legal Service (“MHLS”) moved for dismissals on behalf of two respondents to Kendra’s Law petitions in Supreme Court, Kings County. Respondents argued that Kendra’s Law violated the due process and equal protection guarantees of the New York State and the United States Constitutions because the statute did not require a judicial finding of incapacity prior to the issuance of an order requiring the respondent to comply with the AOT treatment plan. The court rejected all of respondents’ arguments, and held that the statute was in each respect constitutional.

The challenge was based largely upon the Court of Appeals decision in Rivers v. Katz.25 The Rivers court acknowledged that all patients have a fundamental right to determine the course of their own treatment, but also that there may be circumstances where it is necessary to administer treatment to a psychiatric inpatient over the patient’s objections, pursuant to either the State’s police power or parens patriae power. Rivers established a procedural due process standard for medication over objection, requiring a judicial finding that the patient lacks the capacity to make competent decisions concerning treatment. This is a judicial determination, not a clinical determination, and recognizes that there is a cognizable deprivation of liberty resulting from a decision to forcibly medicate a person who has been involuntarily committed.

Respondents in Urcuyo urged the court to equate the infringement of a patient’s liberty interest as a consequence of an AOT order with the Rivers situation, where a psychiatric inpatient is forcibly medicated against his or her will. Respondents pointed to the compulsive nature of court orders, and reasoned that the threat of removal for observation as a result of noncompliance is so akin to the forcible medication situation in Rivers, that identical due process safeguards are constitutionally required.26 The court answered by stating that AOT patients are not involuntary inpatients, and therefore are not even subject to medication over objection. There is no threat of medication over objection because there is no authorization in the statute for such measures, and that “[e]ven if a patient is eventually retained in a hospital after the seventy-two hour evaluation period [pursuant to 9.60(n)], he or she still cannot be forcibly medicated absent a judicial determination of incapacity or under emergency circumstances.”27 With respect to respondents’ attempts to draw analogies between forcible administration of medication over objection, and the more remote possibility of clinical intervention in the event of non-compliance, the response was equally succinct:

This court rejects respondents’ argument that an assisted outpatient order, while not providing for the forcible administration of medication, unreasonably violates the patients’ right to refuse medication by threatening arrest upon non-compliance with the plan. . . . the court does not agree with respondents’ argument that a failure to take medication results in the summary arrest of the patient. Rather, the patient’s failure to comply with the treatment plan, whose formulation the patient had the opportunity to participate in, leads to the heightened scrutiny of physicians for a 72-hour evaluation period, but only after a physician has determined that the patient may be in need of involuntary admission to a hospital.28 Ultimately, the 72-hour observation period was held to be “a reasonable response to a patient’s failure to comply with treatment when it is balanced against the compelling State interests which are involved.”29 Furthermore, the removal and 72-hour observation provisions of the statute were held to be in accord with earlier judicial constructions of the dangerousness standard embodied in the M.H.L. provisions concerning involuntary commitment.

One such precedent was Project Release v. Provost,30 which held that M.H.L. provisions authorizing involuntary observation periods of up to 72 hours satisfy constitutional due process standards. Reference was also made to prior decisions permitting clinicians, and courts, to consider a patient’s history of relapse or deterioration in the community, when weighing the appropriateness of an exercise of the police power or the parens patriae power. For example, Matter of Seltzer v. Hogue31 involved a civilly committed patient whose behavior improved in the hospital, but who would not comply with treatment, and whose condition would deteriorate in the community. The Hogue court considered evidence of the patient’s behavior in the community, and pattern of treatment failures, and ordered his continued retention under M.H.L. section 9.33.  Relying on Hogue, the Urcuyo court held that it was appropriate to consider the patient’s behavior in the community, and any history of treatment failures, when making a determination regarding dangerousness in a proceeding pursuant to Kendra’s Law.32 Reviewing the specific criteria that must be shown by a petitioner, the high evidentiary standard requiring that those criteria be shown by clear and convincing evidence, and the prior judicial acceptance of other Mental Hygiene Law provisions which are analogous to the 72-hour observation provision of Kendra’s Law, the court found respondents’ constitutional due process rights are sufficiently protected.

Although the constitutional issues considered by the court were sufficiently significant that an appeal of the decision would appear to have been a certainty, the particular facts of the case resulted in a withdrawal of the petition prior to a final decision on the merits. Consequently the parties were deprived of standing to bring the court’s decision concerning the issue of the law’s constitutionality before the Appellate Division, and thus appellate review of the issue would have to wait for a more suitable case.

It did not take long for such a case to arise for in the wake of the decision in Matter of Urcuyo, the Supreme Court, Queens County, was presented with another constitutional challenge to Kendra’s Law. In Matter of K.L.,33 the MHLS moved for dismissal of a petition on behalf of respondent, arguing that the statute was unconstitutional on two grounds—that the statute unconstitutionally deprived patients of the fundamental right to determine their own course of treatment, and that the statutory provisions concerning removal for observation following noncompliance with the AOT order are facially unconstitutional.

The Attorney General of the State of New York, in his statutory capacity under N.Y. Exec. Law s. 71 intervened to support the constitutionality of the statute. In turn, an amici brief was submitted in support of the respondent’s constitutional challenge, representing a number of advocate groups.  The first challenge brought by the respondent in Matter of K.L. echoed the constitutional challenge in Matter of Urcuyo, and asked the court to equate AOT with the type and degree of deprivation of liberty implicated in Rivers, which involved the forcible medication of a psychiatric inpatient over the patient’s objection.34 Respondent argued that in those cases where the treatment plan included a medication component, the court could avoid finding the statute unconstitutional by construing it to require a judicial finding that the patient lacked the capacity to make reasoned decisions concerning his medical treatment. Respondent offered that the procedural safeguards developed in Rivers could be imported into the AOT procedure, and preserve the patient’s right to control his course of treatment.

Respondent’s characterization of Kendra’s Law orders as tantamount to medication over objection was rejected, and the Rivers facts distinguished from the AOT situation. Notably, Rivers reaffirmed the right of every individual to determine his or her own course of treatment, but also recognized that “this right is not absolute, and must perforce yield to compelling state interests when the state exercises its police power (as when it seeks to protect society), or its parens patriae power (to provide care for its citizens who are unable to care for themselves because of mental illness).”35 The court then rejected the Rivers analogy:

However, there is a fundamental flaw in respondent’s position in this regard. Under Kendra’s Law, the patient is not required to take any drugs, or submit to any treatment against his will. To the contrary, the patient is invited to participate in the formation of the treatment plan.  When released pursuant to an assisted outpatient treatment order, no drugs will be forced upon him if he fails to comply with the treatment plan.36 After dismissing the Rivers analogy, the court went on to analyze whether any deprivation of a patient’s liberty interests occasioned by a Kendra’s Law order was the result of the constitutional exercise of the State’s police or parens patriae powers. The court first noted that for the state to exercise the police power where an individual’s liberty interest may be infringed, a compelling state interest must be identified. The court found such a compelling state interest:

Certainly, the state has a compelling interest in preventing emergencies and protecting the public health. Thus the objective of Kendra’s Law, the outpatient treatment of the mentally ill who, without treatment, “may relapse or become suicidal,” may be viewed as a reasonable motive for the exercise of the state’s police power.37 The court noted that the statute requires that a history of non-compliance leading to repeated hospitalizations, or serious violent behavior toward the individual himself or others, and that a relapse in the individual’s illness would be likely to result in serious harm to the patient or others, and concluded that “[t]hese considerations are not trivial.”38 Ultimately, the court found that these considerations demonstrated the appropriateness of the state’s exercise of its parens patriae powers as well.39 In light of exhaustive legislative findings, and “elaborate procedural safeguards to insure the protection of the patient’s rights,”40 the court concluded:

Given that the purpose of Kendra’s Law is to protect both the mentally disabled individual and the greater interests of society, the statute is narrowly tailored to meet its objective. In view of the significant and compelling state interests involved, the statute is not overly broad, or in any way unrelated to, or excessive in light of those interests.41 Respondent’s second constitutional challenge was based upon the contention that, in order for the removal provision (M.H.L. section 9.60(n)) to pass constitutional muster, the patient must be afforded notice and an opportunity to be heard prior to any removal for observation. Or stated differently, “it is urged that only a court may order such confinement or detention, rather than a physician, as set forth in the statute.”42 This argument was also rejected.  Contrary to respondent’s position that the statute permits summary arrest without any due process, for an AOT order to issue in the first instance there must have been a judicial finding, based on clear and convincing evidence, that in the event of a failure to comply with treatment, the patient will likely present a danger to himself or others. In addition to this prior judicial finding, failure to comply does not automatically result in the immediate confinement of the patient. In fact, the court went to great lengths to articulate the significant procedural requirements which must be met prior to any effort to remove the patient who has failed to comply with his treatment plan:

Before a physician may order [removal] of a patient to a hospital for examination, the following must take place:

  • 1.   The physician must be satisfied that efforts were made to solicit the patient’s compliance; and
  • 2.   In the clinical judgment of the physician, the patient (a) may be in need of involuntary admission to a hospital pursuant to section 9.27 of the mental hygiene law; or (b)”immediate observation, care and treatment of the patient may be necessary pursuant to Mental Hygiene Law sections 9.39 or 9.40.”
  • 3. The physician may request “the director,” or certain other specific person, to direct the removal of the patient to an appropriate hospital for examination, pursuant to specific standards.
  • 4. The patient may be retained only for a maximum of 72 hours.
  • 5. If at any time during the 72-hour period the patient is found not to meet the involuntary admission and retention provision of the Mental Hygiene Law, he must be released. 43

With reference to other provisions of the Mental Hygiene Law which permit the involuntary removal of a person to a hospital, and which have all been constitutionally upheld,44 the court noted that the removal provisions in Kendra’s Law contemplate even greater procedural protections. For example, removal under Kendra’s Law requires a prior judicial finding that removal may be appropriate in the event of failure to comply.  Having had his constitutional challenge to Kendra’s Law denied by the supreme court in Queens County, and having had that court also grant the petition for assisted outpatient treatment as to him, the Respondent in Matter of K.L appealed the decision to the Appellate Division, Second Department. Although the order for assisted outpatient treatment had expired by the time the appeal was heard, the Second Department found that the issues raised justified invocation of an exception to the mootness doctrine.45

The Appellate court also rejected arguments by the Attorney General that Respondent lacked standing to challenge the removal provisions of the law, because he had failed to allege that he had actually been removed pursuant to that provision in violation of his constitutional rights.46 In an opinion notable for its succinctness, the Second Department also rejected the argument that the additional procedural due process created by Rivers v. Katz applicable to forcible medication over objection also to preclude court-ordered assisted outpatient treatment such as is permitted by Kendra’s Law. In a unanimous opinion, the court held:

In contrast to Rivers, however, Kendra’s Law is based on a legislative finding [5] that there are some mentally-ill persons who are “capable of living in the community with the help of family, friends and mental health professionals, but who, without routine care and treatment, may relapse and become violent or suicidal, or require hospitalization”. . . .  Any compulsion that the patient feels to comply with the treatment plan is justified by the court’s finding, by clear and convincing evidence, that the patient needs AOT in order to prevent a relapse or deterioration which is likely to cause serious harm to the patient or others (see Mental Hygiene Law § 9.60[c][6]). Under these circumstances, a judicial finding of incapacity is not warranted . . . .47 The Second Department then identified three separate challenges to the removal provision of Kendra’s Law. First, Respondent alleged that the removal provision failed to meet constitutional procedural due process standards, because it did not require a pre-removal judicial hearing.

The court applied the test established by the U.S. Supreme Court in Mathews v. Eldridge,48 which requires the weighing of three factors: 1.) The private interest that will be affected, 2.) The risk of an erroneous deprivation through current procedures and probable value of substitute procedures, and 3.) The government’s interest, including the function involved and the burdens associated with any substitute procedures. Applying this test, the law was found to comport with constitutional due process standards:

Here, the brief detention of a noncompliant assisted outpatient for a psychiatric evaluation does not constitute a substantial deprivation of liberty, and the additional safeguard of a judicial hearing will not significantly reduce the possibility of an erroneous removal decision. Moreover, the government has a strong interest in avoiding timeconsuming judicial hearings, which require mental health professionals to defend their clinical decisions and divert scarce resources from the diagnosis and treatment of the mentally ill . . . . Also, any detention beyond the initial 72 hours is governed by the statutory provisions for involuntary commitments, which contain sufficient notice and hearing provisions to meet “procedural due process minima” (Project Release v Prevost, 722 F.2d 960, 975).49

Respondent next challenged the removal provision by arguing that since CPL 330.20(14) provides criminal defendants who are found not guilty by reason of mental disease or defect with the right to a hearing before being recommitted to a secure psychiatric facility, that a person subject to a Kendra’s Law order is deprived of their equal protection rights because they do not have a similar right to a hearing. This position was quickly rejected, because the situation of an insanity acquittee is sufficiently distinct from that of an individual subject to civil commitment.50

Finally, the argument that removal pursuant to the statute violates the Fourth Amendment to the United States Constitution because it does not require a finding of probable cause was also rejected. The statute requires a physician to make several determinations based upon clinical judgment, mirroring the provisions of M.H.L. 9.13, which in turn contains a “reasonable grounds” standard, and that the assisted outpatient has a documented history of non-compliance leading to violent acts or hospitalizations, concluding ;

Under these circumstances, a physician’s clinical judgment based on the statutory criteria is sufficient to justify the removal and detention of a noncompliant assisted outpatient for a 72-hour psychiatric evaluation.51 Respondent was unsatisfied with the Appellate Division’s rejection of his constitutional challenges, and made a final appeal to the New York State Court of Appeals. In February of 2004 in a unanimous opinion written by chief judge Judith Kaye, the highest court, like the trial court and the Appellate Division before it, rejected all of Respondent’s challenges and upheld the constitutionality of the statute in all respects.52

Once again, Respondent argued that the law could be saved if the court read into it the requirement that AOT was only permissible if there was a judicial determination that the subject lacked capacity to make treatment decisions. This argument has as its fundamental premise the notion that AOT is in fact a type of medication over objection, and equates the impact of AOT on the subject’s liberty interest with the infringement of liberty suffered by a psychiatric inpatient who is subject to forcible medication over objection. In other words, respondent argued that AOT is prohibited by Rivers v. Katz, in the absence of the additional procedural due process mandated by that case.

The Court of Appeals rejected this argument, acknowledging that limiting AOT to those who lacked capacity “would have the effect of eviscerating the legislation,” and that “a large number of patients potentially subject to assisted outpatient treatment would be ineligible for the program if a finding of incapacity were required.”53 The very impetus for the law was the finding by the Legislature that many patients are capable of living safely in the community only with the benefit of the structure and supervision of AOT, and to require a finding of incapacity would in essence exclude most of the individuals the Legislature sought to assist.  The Court of Appeals quickly identified the critical flaw in Respondent’s reasoning – the failure to recognize that the additional due process required by Rivers is not applicable to AOT simply because medication over objection is not authorized by Kendra’s Law:

Since Mental Hygiene Law § 9.60 does not permit forced medical treatment, a showing of incapacity is not required. Rather, if the statute’s existing criteria satisfy due process – – as in this case we conclude they do—then even psychiatric patients capable of making decisions about their treatment may be constitutionally subject to its mandate.  . . . As we made clear in Rivers, the fundamental right of mentally ill persons to refuse treatment may have to yield to compelling state interests (67 NY2d at 495). The state “has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill” (Addington v Texas, 441 US 418, 426 [1979]).  Accordingly, where a patient presents a danger to self or others, the state may be warranted, in the exercise of its police power interest in preventing violence and maintaining order, in mandating treatment over the patient’s objection. Additionally, the state may rely on its parens patriae power to provide care to its citizens who are unable to care for themselves because of mental illness (see Rivers, 67 NY2d at 495).54

Respondent also urged the court to adopt the position that even if Kendra’s Law did not permit forcible medication over objection and because AOT subjects are ordered by a judge to take their medication may prompt a subjective response from the individual amounting to coercion which is so substantial as be considered equivalent to forcible medication. This argument was likewise summarily rejected:

The restriction on a patient’s freedom affected by a court order authorizing assisted outpatient treatment is minimal, inasmuch as the coercive force of the order lies solely in the compulsion generally felt by law-abiding citizens to comply with court directives. For although the Legislature has determined that the existence of such an order and its attendant supervision increases the likelihood of voluntary compliance with necessary treatment, a violation of the order, standing alone, ultimately carries no sanction.  Rather, the violation, when coupled with a failure of efforts to solicit the assisted outpatient’s compliance, simply triggers heightened scrutiny on the part of the physician, who must then determine whether the patient may be in need of involuntary hospitalization.55

Considering the high evidentiary burden faced by AOT petitioners, and the detailed criteria in the statute and the considerable and important interests of the state in insuring the safety of the AOT subject as well as others in the community, the court concluded that the individual’s right to refuse treatment was not unconstitutionally infringed:

In any event, the assisted outpatient’s right to refuse treatment is outweighed by the state’s compelling interests in both its police and parens patriae powers. Inasmuch as an AOT order requires a specific finding by clear and convincing evidence that the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to self or others, the state’s police power justifies the minimal restriction on the right to refuse treatment inherent in an order that the patient comply as directed. Moreover, the state’s interest in the exercise of its police power is greater here than in Rivers, where the inpatient’s confinement in a hospital under close supervision reduced the risk of danger he posed to the community.

In addition, the state’s parens patriae interest in providing care to its citizens who are unable to care for themselves because of mental illness is properly invoked since an AOT order requires findings that the patient is unlikely to survive safely in the community without supervision [and] . . . the patient is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others . . .In requiring that these findings be made by clear and convincing evidence and that the assisted outpatient treatment be the least restrictive alternative, the statute’s procedure for obtaining an AOT order provides all the process that is constitutionally due.56

The argument that an individuals constitutional equal protection rights are violated in the absence of a finding of incapacity, because persons subject to guardianship proceedings, and involuntarily committed inpatients must be accorded such a hearing prior to medication over objection, was also rejected. Reiterating that Kendra’s Law simply does not authorize medication over objection, the court held that “[t]he statute thus in no way treats similarly situated persons differently.”57 Respondent also challenged the removal provision of Kendra’s Law, contending that because the law does not require a pre-removal hearing that the individual’s constitutional due process rights are violated. The statute permits the temporary removal of an individual subject to an AOT order, if the individual is non-compliant with treatment, efforts to solicit compliance have failed, and a physician determines that as a result the individual may be in need of inpatient care and treatment. The individual may be retained for up to 72 hours to determine whether he or she meets the standards for further retention found in any of a number of other provisions of the Mental Hygiene Law. If at any time during the 72 hours it is determined that the individual does not meet the standards for further retention, he or she must be released.

The Court of Appeals, like the Appellate Division, applied the balancing test announced in the United States Supreme Court case, Mathews v. Eldridge. The court balanced the interest affected, the risk of deprivation through the procedures in the law and the burden of alternative procedures, and the governments interests served by the law.


Applying the first factor of this test to the removal provision of Kendra’s Law, the Court of Appeals voiced disagreement with the Appellate division, and found that the 72 hour retention did constitute a substantial deprivation of liberty. However, the Court of Appeals affirmed the lower court’s ultimate conclusion that considering the Mathews factors together, any infringement is outweighed by the considerable procedural safeguards and the very important governmental interest at stake.58


With respect to the second factor, the risk of an erroneous deprivation is minimized by the fact

that there must be a judicial finding, by clear and convincing evidence that, among other things, “the patient is unlikely to survive safely in the community without supervision; has a history of > noncompliance resulting in violence or necessitating hospitalization; and is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm.” In addition, the law allows the individual’s treating physician to determine the

need for observation and inpatient care, which are clinical determinations, and not a judge, as Respondent urged. Considering these features of the law, the court concluded that “[a] preremoval hearing would therefore not reduce the risk of erroneous deprivation.”59

Lastly, the governmental interest in reducing the risk of harm to the individual or others in the community was considered to be significant, and the addition of a pre-removal hearing to the already substantial procedural safeguards would have the undesired effect of frustrating that intent:

In addition, the state’s interest in immediately removing from the streets noncompliant patients previously found to be, as a result of their noncompliance, at risk of a relapse or deterioration likely to result in serious harm to themselves or others is quite strong. The state has a further interest in warding off the longer periods of hospitalization that, as the Legislature has found, tend to accompany relapse or deterioration. The statute advances this goal by enabling a physician to personally examine the patient at a hospital so as to determine whether the patient, through noncompliance, has created a need for inpatient treatment that the patient cannot himself or herself comprehend.

A pre-removal judicial hearing would significantly reduce the speed with which the patient can be evaluated and then receive the care and treatment which physicians have reason to believe that the patient may need. Indeed, absent removal, there is no mechanism by which to force a noncompliant patient to attend a judicial hearing in the first place.60 The last argument raised by Respondent alleged that removal pursuant to the law as violated of the fourth amendment prohibition against unreasonable searches and seizures, because the statute does not specify that a physician must have probable cause to believe that an individual meets the criteria for removal. The court in essence concluded that the proper exercise of clinical judgment by the physician implies that such judgments will conform to the reasonableness standard:

It is readily apparent that the requirement that a determination that a patient may need care and treatment must be reached in the “clinical judgment” of a physician necessarily contemplates that the determination will be based on the physician’s reasonable belief that the patient is in need of such care.61 As a result of the Court of Appeals decision, it is now well settled that Kendra’s Law is in all respects a constitutional exercise of the states police power, and its parens patriae power.  Further, the removal provisions of the law have withstood constitutional scrutiny. Because this opinion was rendered by the Court of Appeals, which is the highest court in New York, the doctrine of stare decisis should preclude similar facial challenges to the constitutionality of Kendra’s Law in the future.

Decisions Construing the Statutory Criteria


In addition to the decisions concerning constitutional issues in Matter of K.L., and Matter of Urcuyo, there is now some guidance from the courts concerning the statutory criteria for Kendra’s Law orders, M.H.L. section 9.60©.

Soon after the statute became effective, an issue arose with respect to the proper construction of the alternative criteria concerning a respondent’s prior need for hospitalization, or prior violent acts. Among other criteria, a Kendra’s Law petitioner must demonstrate under M.H.L. section 9.60©(4):

[that] the patient has a history of lack of compliance with treatment for mental illness that has:

  • (i) at least twice within the last thirty-six months been a significant factor in necessitating hospitalization in a hospital, or receipt of services in a forensic or other mental health unit of a correctional facility or a local correctional facility, not including any period during which the person was hospitalized or incarcerated immediately preceding the filing of the petition or:
  • (ii) resulted in one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months, not including any period in which the person was hospitalized or incarcerated immediately preceding the filing of the petition . . .

The Two Hospitalization Criteria

The first prong of 9.60©(4) is satisfied when a petitioner demonstrates that a patient has been hospitalized twice, as a result of treatment failures, within the past thirty-six months (referred to as the “two hospitalizations” criterion). The thirty-six month look-back period excludes the duration of any current hospitalization.

In June of 2000, a Kendra’s Law petition was brought in Supreme Court, Richmond County, alleging that the respondent had been hospitalized on two occasions within the statutory lookback period—within the time period of the current hospitalization plus thirty-six months.  In Matter of Sarkis, 62 the respondent moved to dismiss the petition, arguing, among other grounds, that the petition was deficient because it counted the current hospitalization as one of the two hospitalizations required to satisfy 9.60©(4)(i). Respondent reasoned that the statutory language which excluded the duration of the current hospitalization from the look-back period must also be construed to exclude the current hospitalization from being counted as one of the two hospitalizations required.

The court relied on the specific language of the statute, and rejected respondent’s argument:

[R]espondent’s position is based on a flawed interpretation of the statutory provision, which reads [9.60©(4)(i)] as modifying the single word “hospitalization” appearing in the first clause of Mental Hygiene Law 9.60©(4), rather than the grammatically more consistent “thirty-six months” period during which the noncompliance resulting in such hospitalizations must occur.63 It is the duration of the current hospitalization which is excluded from the look-back period. In any event, it is the need for hospitalization as a result of noncompliance which is at the bottom of the two hospitalization requirement. “The triggering event for purposes of Mental Hygiene Law 9.60©(4)(i) is not the hospital admission but rather the noncompliance with treatment necessitating the hospitalization, and is complete before the hospitalization begins.”64

Respondent appealed the denial of his motion to dismiss, and the Appellate Division, Second Department affirmed, writing:

[W]e agree with the Supreme Court’s interpretation of Mental Hygiene Law s. 9.60©(4)(i) . . . The appellant interprets this provision as precluding the consideration of his hospitalization immediately preceding the filing of the petition as one of the two required hospitalizations due to noncompliance with treatment within the last 36 months. . . we reject the appellant’s interpretation . . . which would inexplicably require courts to disregard the most recent incident of hospitalization due to noncompliance with treatment in favor of incidents more remote in time.65

The decision in Matter of Dailey,66 is in accord with Matter of Sarkis. In Dailey, the court rejected an argument identical to that offered by respondent in Sarkis, holding that reading the statutory language, together with the legislative history, Aleads to the conclusion that the section seeks only to expand the number of months which a petitioner can look back to thirty-six months prior to the current hospitalization and does not exclude the acts of non-compliance with treatment and the current hospitalization itself from consideration for an AOT order.67 In a decision further clarifying the two hospitalization criteria, Supreme Court, Suffolk County held that in determining whether a particular hospitalization falls within the statutory look back period, a petitioner may rely upon the latest date of the hospitalization, and not the starting date.


In Matter of Anthony F., the earlier hospitalization began more than thirty-six months prior to the petition, but ended less than thirty-six months prior to the petition. The court stated that as long as the petitioner can establish a nexus between the continued hospitalization and a lack of compliance with treatment, the “thirty-six month period is to be measured from the final date of the earlier hospitalization.” 68

The Violent Act Criteria

The second prong of 9.60c(4) is satisfied when a petitioner establishes that a patient has committed one or more acts of serious violent behavior toward self or others or threats of, or attempts at, serious physical harm to self or others within the last forty-eight months (referred to as the “violent act” criterion). However, in language which is similar to the two hospitalizations requirement discussed above, the forty-eight month look- back period excludes the duration of any current hospitalization or incarceration.

This provision of the statute was the subject of an appeal to the Second Department. In Matter of Hector A.,69 the trial court had dismissed the petition because the violent act relied upon to satisfy the statutory criteria occurred while the patient was hospitalized. The respondent stabbed a hospital worker during his current hospitalization, and the outcome of the case hinged on whether the stabbing could be used to satisfy the violent act criterion of 9.60©(4). On appeal, petitioner argued that the forty-eight month exclusion applies only to the duration of the look-back period, and should not be read to exclude violent acts occurring during the current hospitalization. The respondent argued that the language excluding the duration of the current hospitalization from the forty-eight month look-back period also required the court to exclude evidence of any violent acts or threats during the current hospitalization. The Second Department reversed the trial court’s dismissal, and held that the evidence related to the stabbing was admissible to satisfy the violent act requirement:

There is no merit to the patient’s argument that the violent act he committed against a hospital employee must be disregarded under Mental Hygiene Law s. 9.60©(4)(ii). This provision simply extends the 48 month period for considering the patient’s violent behavior by the duration of his hospitalization or incarceration “immediately preceding the filing of this petition.” This provision in no way eliminates from consideration violent acts occurring during the hospitalization or incarceration.70 Hector A. cited with approval the rationale articulated in Julio H.,71 where Respondent sought dismissal of an AOT petition, and argued for a construction of 9.60©(4)(ii) which would exclude violent acts which occur while a person is hospitalized from being used to satisfy the requirements of that section in an AOT petition.

The respondent in Julio H. moved for dismissal of the AOT petition on two grounds: First, he argued that the exclusion of the current hospitalization from the forty-eight month look back period also excludes any violent acts during the current hospitalization. Second, he urged the Court to accept the premise that a person who is currently hospitalized is receiving treatment, is therefore deemed compliant, and thus violent acts occurring during hospitalization could never be the result of non-compliance with treatment.

Both arguments were rejected, with the result that respondent’s violent act occurring during his current hospitalization could be used to satisfy the violent act criterion of M.H.L. 9.60©(4)(ii).

Further, there is no irrebuttable presumption of compliance during hospitalization, and the issue of whether a patient has been non-compliant with treatment while in a psychiatric hospital “is a fact to be determined at the AOT hearing.”72 This is significant, because the petitioner must establish a nexus between the patient’s violent behavior and his failure to comply with >treatment. By denying respondent’s argument that compliance in the hospital is presumed, the court created an opportunity for petitioners to demonstrate a nexus between non-compliance, >and violence, based on the patient’s behavior while hospitalized.73

Decisions on the Applicability of the Physician-Patient Privilege

In addition to challenges to the constitutionality of Kendra’s Law, and clashes over the appropriate construction of the two hospitalizations and violent act criteria, there have been challenges involving the type of evidence which may, or must be offered in support of an AOT petition.

One significant evidentiary challenge involved the practice of having a patient’s treating physician testify at the mandatory hearing on the petition. The practice prompted objections based on the physician-patient privilege, which is codified in N.Y. Civ. Prac. L. & R. (CPLR) 4504.

Supreme Court, Queens County, was faced with such a challenge in the Spring of 2000, in Matter of Nathan R.,74 and ultimately ruled that the statutory privilege did not operate to prevent a treating physician from also fulfilling the role of examining physician in a Kendra’s Law proceeding.

To meet the statutory requirements for AOT, a petition must be accompanied by an affidavit by an “examining physician,” who must state that he or she has personally examined respondent no more than 10 days prior to the submission of the petition, that such physician recommends AOT, and that the physician is willing and able to testify at the hearing on the petition.75 The examining physician is also required to testify at the hearing on the petition concerning the facts underlying the allegation that the respondent meets each of the AOT criteria, that it is the least restrictive alternative, and concerning the recommended treatment plan.76

In Nathan R., the examining physician was also respondent’s treating physician. Respondent moved to dismiss the petition, on the basis that “the physician-patient evidentiary privilege codified in CPLR 4504 absolutely prohibits a treating psychiatrist from submitting an affidavit or giving testimony in support of [an AOT] petition.”77 The motion to dismiss was denied:

CPLR 4504 does not prevent a treating physician from disclosing information about the patient under all circumstances. . . . The protection of the physician-patient privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing.78

The decision allowed that there may in fact be specific communications which are entitled to protection, but the burden is on the movant to demonstrate the existence of circumstances justifying the recognition of the privilege. Even in such cases, the privilege will only be held to attach to specific communications, and broad, conclusory claims of privilege, such as those made by respondent’s counsel in Nathan R., will not suffice.79 Respondent also suggested that because a treating physician is among those enumerated who may bring a petition, and a petitioner cannot also act as the examining physician, a treating physician is statutorily prohibited from fulfilling the role of examining physician. This argument was also rejected:

It is unclear whether the [respondent] is also claiming that Mental Hygiene Law s.9.60 prohibits a treating psychiatrist from being the examining physician. It does not. It only prevents a treating psychiatrist from being the petitioner if the treating psychiatrist is the examining physician.

Supreme Court, Queens County, was faced with an identical argument, in a motion to dismiss a Kendra’s Law petition shortly after Nathan R. was decided. In Amin v. Rose F.,81 respondent urged the court to dismiss the petition as insufficient, because the respondent’s treating physician was also the examining physician, and therefore his testimony in support of the petition would be prohibited by the physician-patient privilege. In denying the motion, the court looked at, among other things, the legislative history of Kendra’s Law, and held:

[I]t is clear that the legislature intended and desired for the subject’s treating physician to be intimately involved with the various aspects of assisted outpatient treatment, and thereby implicitly waived the physician-patient privilege for the purposes of assisted outpatient treatment. . . . Indeed, it would serve no useful purpose to insist on the physician-patient privilege under M.H.L. 9.60, and, in fact, would frustrate the clear intention of the legislature to keep mentally ill persons in the community and out of inpatient psychiatric hospitalization. Furthermore, once the privilege is waived, it is waived for all purposes . . . This clearly includes allowing the treating psychiatrist to examine the subject of the AOT proceeding, and to testify as to his findings at that hearing.

Therefore, although the statute prohibits a treating physician from being both the petitioner and the examining physician with respect to a particular patient, the statute does not prohibit the treating physician from also being either the examining physician or the petitioner.  The respondent in Amin appealed the decision denying her motion to dismiss. The original petitioner did not file a responsive brief or otherwise oppose the appeal, because by the time of the appeal, the respondent was no longer in petitioner’s care, and therefore petitioner did not identify itself as having any real stake in the outcome. The Attorney General was granted permission by the Appellate Division to file an amicus brief, and argued for an affirmance, based on the reasoning in Nathan R., and Amin. However, because the respondent in Amin entered into a voluntary agreement upon expiration of the original order, the appeal was dismissed as academic.83 It is thus left to a future litigant to challenge the concurrent reasoning of Nathan R.  and Amin.

Other Decisions

In Matter of Jason L.,84 a case before the Supreme Court, Monroe County, a dispute evolved concerning whether a respondent has the right to a hearing before an order can issue for his removal to a hospital for the purposes of the examination. Even after the court formally requested that respondent submit to such an examination, he refused. Instead, respondent objected to the request, demanding that he be provided with a hearing prior to any courtordered examination, and that to do otherwise would violate his constitutional due process rights. Relying on M.H.L. 9.60(h)(3), which governs situations where a patient refuses to permit an examination by a physician, the court ordered the removal for examination:

The court rejects respondent’s contention that the statute implies the requirement of such a hearing, although in some cases it may be appropriate to do so. [The petition] sufficiently sets out grounds establishing reasonable cause to belief that the petition is true. The respondent was given ample opportunity to be heard at oral argument with respect to the petition and, indeed, plans to submit written opposition to the petition itself. However, this court feels that the statute authorizes the court to make a finding on the papers submitted when appropriate and empowers the court to authorize the police to take respondent into custody for purposes of the physician examination.85

Jason L. provides guidance on the issue of the procedure for pre-hearing examinations, but leaves open the possibility that judges may find it appropriate in certain circumstances to conduct a hearing prior to ordering the removal of a patient for examination. The governing standard remains whether the affidavits and other clinical evidence offered by the petitioner establish reasonable grounds to believe that the petition is true. This is a standard which is decidedly lower than that applicable to a decision on the merits of the petition, and the court in Jason L. was prudent in not allowing the hearing on the examination issue to expand into a hearing on the petition itself.

Questions regarding the evidentiary standard applicable to AOT hearings have also found their way into the courts. For example, in Matter of Jesus A.,86 respondent moved to dismiss the petition, arguing that petitioner failed to offer facts sufficient to establish that an AOT order was appropriate. The court was critical of the affidavit of the examining physician, which merely paraphrased the criteria, concluding:

Clearly, these allegations, which are nothing more than conclusions, not facts, are insufficient. It thus is the holding of this court that, as in all other cases, allegations which are nothing more than broad, simple conclusory statements are insufficient to state a claim under section 9.60 of the Mental Hygiene Law. 87 The petitioner submitted a supplemental affidavit in an attempt to cure the deficiencies found in the original. This effort also failed, because it was not based upon “personal knowledge or upon information and belief in which event the source of the information and the grounds for the belief must be provided.”88 If it was not clear prior to Jesus A., the fog has now lifted—the petition must contain specific evidence, whether in the form of documents, affidavits or testimony, that all of the criteria are met. This burden must be carried by reference to facts, and the mere paraphrasing of the statutory language will not suffice.

There has been some controversy surrounding the question of whether the right to counsel provision of Kendra’s Law89 applies to the pre-hearing examination, which inevitably takes place prior to the filing of the petition and the official commencement of the proceeding. In Matter of Nancy H., Supreme Court, Dutchess County held that the right to counsel attaches only after the proceeding is commenced. Because the examination took place prior to the filing of the petition, which commenced the proceeding, the patient did not have the right to have her attorney present during the examination.90 A different conclusion was reached by Supreme Court, Otsego County in Matter of Noah C.91 In Noah C. the petitioner failed to provide notice to the respondent’s counsel prior to an examination in anticipation of a renewal petition.

The court held that the proceeding had been commenced by the filing of the original petition, and that therefore the right to counsel had long since attached. In dicta, the court suggested that it shouldn’t matter whether the petition is for an original order or for a renewal, and that in either instance the patient’s counsel should receive notice prior to any pre-hearing examination.  This controversy culminated in a case decided by Supreme Court, Sullivan County, captioned Matter of David A. 92 The court reasoned that since the purpose of the examination was to allow the examining physician to develop the affirmation which would be submitted as part of the petition, and to testify at the hearing itself, the right to counsel attached. Relying on earlier decisions, the court made clear that the attorney is entitled to notice, and may observe the examination, but must not interrupt or interfere with the examination. This allows the attorney to identify any issues pertaining to the examination, which may be raised later at the hearing.  There has also been controversy surrounding petitions for rehearing and review pursuant to M.H.L 9.60(m). Specifically, there have been disputes concerning whether the service provisions of M.H.L. 9.60(f) apply to such petitions.

The most common example is the situation where a petition was brought by a private hospital, the petition was granted, and the individual was discharged into the community with the AOT order. Subsequent to discharge, a petition for a rehearing and review is filed, but only the original petitioner – the private hospital – is served.  This is a problem because the hospital in nearly every case has had no contact with the patient following discharge, because the AOT treatment plan is implemented by the local Director of Community Services, and monitored by the Office of Mental Health program coordinator. In other words, the hospital is put in the position of having to defend the appropriateness of the AOT order when it is no longer involved with the individual’s treatment, and often has no connection to the patient in the community. At the same time, the local Director, who has responsibility for the delivery of care pursuant to the AOT order, is left out of the proceeding.  By failing to serve the local Director and the OMH program coordinator, the petitioner for rehearing and review deprives those officials of a meaningful opportunity to fulfill their statutory duties, and deprives the court considering the petition for rehearing and review of the most current and crucial clinical information about the individual.

Recognizing the need to avoid these unwanted outcomes, Supreme Court, Suffolk County in Matter of Weinstock,93 held that a petitioner for rehearing and review must satisfy the service requirements of M.H.L. s. 9.60(f), and that both the local Director of Community Services, and the OMH program coordinator must be afforded a reasonable opportunity to participate in the proceeding.  A very recent case which considered the question of whether categories of service which are not technically clinical services may be included in the treatment plan was Matter of William C., which was decided by the Appellate Division, Second Department in May of 2009.94 The case originated in Supreme Court, Suffolk County, and involved a challenge to the inclusion of the appointment of a representative payee, which is a form of financial management, in the AOT treatment plan.95

Acknowledging that the statute does not specifically authorize the appointment of a representative payee, the court concluded that “[i]t cannot be seriously disputed that money management is a service which would assist a mentally ill person in “living and functioning” as a productive member of the community.”96 While only explicitly authorizing the inclusion of financial management in the treatment plan, this case suggests the possibility that other traditionally non-clinical services may be included in an AOT treatment plan, at least to the extent that such services are essential to the ultimate goal of the treatment plan – for the patient to remain safely in the community.

One last issue worthy of discussion is the amount of discretion a court may exercise in fashioning relief when deciding a Kendra’s Law petition. In In re Application of Manhattan Psychiatric Center,97 the Appellate Division, Second Department, held it is within the authority of a trial court to grant or deny a Kendra’s Law petition, but is beyond its authority to order retention pursuant to other sections of the M.H.L., or order treatment other than what is included in the treatment plan.

The case involved an AOT petition for a patient who, as well as having a history of mental illness and treatment failures, had a criminal history resulting from violent behavior. After the required hearing, and upon consent of the parties, the petition was granted. However, the court held the order in abeyance, pending an independent psychiatric evaluation of respondent.  Although an AOT order ultimately was issued for the patient, the trial court at one point denied the petition, based on its own determination that the patient met the criteria for continued inpatient retention (the “dangerousness standard”), and should not be returned to the community, with or without AOT.

Respondent appealed, and the Second Department decided a number of issues raised by the lower court concerning the scope of that court’s authority under the statute.98 The first issue was whether the court may make its own determination of whether the patient meets the dangerousness standard, and was therefore beyond the reach of AOT. The Second Department responded in the negative, and held that the authority of the trial court was limited to deciding whether the statutory criteria had been met, and then either granting or denying the petition. The decision whether to release the patient is a clinical determination left, in this case, to the director of the hospital. Kendra’s Law does not provide an avenue for the subordination of that clinical judgment to a judicial determination that the patient should remain hospitalized.99 The second issue was whether M.H.L. section 9.60(e)(2)(ii), which permits the court to consider evidence beyond what is contained in the petition, also implicitly provides the authority for the court to make a judicial determination with respect to the dangerousness standard. The Second Department answered again in the negative, and held that section 9.60(e)(2)(ii) only permits the consideration of additional facts in deciding whether the statutory criteria have been met, “[i]t is not an invitation to the court to consider the issue of dangerousness in respect of a decision to release the patient.”100 An issue was also raised concerning whether a court has discretion to deny a petition, where the statutory criteria have been met. Noting that a court must deny the petition if the criteria have not been met, The Second Department concluded:

Thus, the court’s discretion runs only to the least restrictive outcome. In other words, a court may decide not to order AOT for a person who meets the criteria, but it may not decide to order AOT for a patient who does not meet the criteria. . . . In any event, no measure of discretion would be sufficient to permit a court to bar the release of a hospitalized patient (or, by extrapolation, to order the involuntary admission of an unhospitalized patient) as an alternative to ordering AOT, because Kendra’s Law does not place that decision before the court. 101

Accordingly, it is now the case that clinical decisions, such as determinations of dangerousness, are not before the court during Kendra’s Law proceedings. Judicial discretion is limited to deciding whether a petitioner has carried its burden of demonstrating that the statutory criteria are met by clear and convincing evidence, and then either granting or denying the petition.102


While there are still many issues that may want for the clarity provided by judicial review, a number of threshold issues have been resolved since Kendra’s Law became effective. Most importantly, the statute survived constitutional challenges based upon the right to control one’s treatment. Court-ordered AOT has been distinguished from forcible medication over objection, and any fears that such forced treatment would proliferate under Kendra’s Law should be allayed by judicial recognition of the fact that forced medication over objection is never appropriate in an AOT treatment plan, and in any event cannot occur absent sufficient due process pursuant to Rivers v Katz.

It is currently the law that in meeting the two hospitalizations criterion, although the duration of the current hospitalization is excluded from the respective look-back period, the current hospitalization itself can be used to meet the criterion. When deciding whether a prior hospitalization falls within the statutory look-back period, a petitioner may rely upon the latest date of the hospitalization, rather than the date of admission. Similarly, in meeting the violent act criterion, although the duration of the current hospitalization is excluded from the respective look-back period, the violent acts occurring during the current hospitalization can be used to meet the criterion.

The petitioner must marshal facts and evidence, such as testimony from those with actual knowledge, in support of the petition. Mere recitations of the criteria, in affidavit form, will not suffice. In addition, while a patient’s treating physician cannot be both the petitioner and the examining physician in an AOT proceeding, the treating physician can be one or the other. If a patient refuses to submit to an examination, the court can order the removal of the patient to a hospital for the purposes of the examination. In such a circumstance, the petitioner must meet specific criteria justifying the removal, but the patient does not have an absolute right to a preremoval hearing.

Finally, Kendra’s Law does not authorize courts to make independent determinations concerning the issue of whether a patient meets involuntary inpatient criteria, during a Kendra’s Law proceeding. Statutory authority extends only to the judicial determination of whether the petitioner has met its burden of proving by clear and convincing evidence that the statutory criteria have been met, and then the court may either grant or deny the petition.


  • 1.   Prior to the enactment of Kendra’s Law, and prior to the tragic event involving Ms. Webdale, a pilot program for assisted outpatient treatment which was operated out of Bellevue Hospital in New York City.  The pilot program was enacted in 1994 and codified as Mental Hygiene Law section 9.61. The pilot program expired in 1998. Although the pilot and the current law differ in many details, the basic framework for the current statute was based upon the pilot.
  • 2.    Chapters 137 and 158 of the Laws of 2005.
  • 3.    1999 N.Y. Laws 408.
  • 4.    Office of Mental Health Statewide AOT Report as of June 9, 2009.
  • 5.    Much of the information concerning the petition process in this article can be found at the New York
  • State Office of Mental Health official web page,, which contains a great deal of useful information about Kendra’s Law.
  • 6.    M.H.L. section 9.60(i)(1).
  • 7.    M.H.L. section 9.60(h).
  • 8.    M.H.L. section 9.60(j)(2).
  • 9.    M.H.L. section 9.60(k).
  • 10.   M.H.L. section 9.60(n).
  • 11.   The 2005 legislation modified subdivision (b) of section 9.47 of the Mental Hygiene Law to require counties to conduct timely investigations of reports of persons who may be in need of assisted outpatient treatment; establish procedures to provide timely notice of the completion of such investigations to reporting persons and OMH program coordinators; and document such investigations. Further, directors of community services are responsible for documenting petition filing dates and dates of court orders, and coordinating and documenting the timely delivery of services.
  • 12.   M.H.L. section 9.60(e) (1).
  • 13.   M.H.L. section 9.60(e) (3) (i). Subdivision 9.60(e)(4) was is amended as part of the 2005 legislation to authorize the Office of Mental Health to make available to counties with a population of less than seventy-five thousand, a qualified physician for the purposes of making affirmations and affidavits as required under subdivision (e)(3) of this section. The amendment does not require OMH to provide examining physicians for every petition developed by a qualifying county, but simply authorizes the OMH to make such clinical resources available when appropriate and necessary.
  • 80 New York State Assisted Outpatient Treatment Program Evaluation
  • 14.   M.H.L. section 9.60(h)(3). There has been some debate concerning the issue of whether the hearing, is a right which waivable by the patient. Although some courts may grant petitions where all parties agree to waive the hearing, the language of 9.60(h)(2), and 9.60(i)(3), which expressly prohibit the court from granting an AOT order absent the examining physician’s testimony at the hearing, suggests that the hearing itself is non-waivable. Other provisions, such as 9.31 and 9.35 which create the right to a hearing in the inpatient retention context provide a procedure for the patient to request a hearing, and in the absence of such a request the hearing is deemed waived.
  • 15.   M.H.L. section 9.60©.
  • 16.   M.H.L. section 9.60(j)(2).
  • 17.   M.H.L. section 9.60(f).
  • 18.   M.H.L. section 9.60(h).
  • 19.   M.H.L. section 9.60 (j)(2).
  • 20.   M.H.L. section 9.60(m).
  • 21.   M.H.L. section 9.60(n).
  • 22.   In December of 2000, the federal Department of Health and Human Services promulgated regulations pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) establishing standards for the privacy of individually identifiable health information (45 C.F.R. Parts 160 and 164). The general rule established in these regulations is that individually identifiable health information cannot be used or disclosed by covered entities (e.g. providers who engage in electronic transactions) without patient consent or authorization. However, several of the listed exceptions to this requirement would permit covered entities to continue to exchange clinical information without patient consent or authorization as required by Kendra’s Law and Kendra’s Law court orders.
  • 23 The 2005 legislation also provides standing to certain original petitioners (family members and
  • persons who live with patients) to file petitions for additional periods of treatment, provided that the original petitioner retains his or her original status pursuant to subparagraphs (e)(1)(i) or (e)(l)(ii).
  • 24.   In re Urcuyo, 714 N.Y.S.2d 862 (Sup. Ct. Kings County, 2000).
  • 25.   Rivers v. Katz, 67 N.Y.2d 485 (1986).
  • 26.   In re Urcuyo, 714 N.Y.S.2d at 841-42.
  • 27.   Id., at 872, n., 3 (citations omitted).
  • 28.   Id., at 869-70.
  • 29.   Id., at 870.
  • 30.   Project Release v. Provost, 772 F.2d 960 (2d Cir., 1983)
  • 31.   Matter of Seltzer v. Hogue, 187 A.D.2d 230 (Second Dept. 1993)
  • 32.See also, In re Francis S., 206 A.D.2d 4 (First Dept. 1995), aff’d 87 N.Y.2d 554 (1995). Francis S., like
  • the patient in Hogue, was not dangerous in the structured environment of a hospital, but in the community failed to comply with treatment and decompensated to the point of dangerousness.
  • 33.   In the Matter of the Application of Glenn Martin, For an Order Pursuant to Section 9.60 of the Mental
  • Hygiene Law (Kendra’s Law) Authorizing Assisted Outpatient Treatment for K.L., 500748/00 (Sp. Ct., Queens County, 2000), (Order Granting Kendra’s Law Petition).
  • 34.   Id., at 7.
  • 35.   Id.
  • 36.   Id.
  • 37.   Id., at 8.
  • 38.   Id., at 9.
  • 39.   Id., at 10.
  • 40.   Id., at 8.
  • 41.   Id., at 9.
  • 42.   Id., at 10
  • 43.   Id., at 11.
  • 44.   For example, M.H.L. section 9.37, which provides for removal for a 72-hour observation period upon certification by a Director of Community Services was upheld in Woe by Woe v. Cuomo, 729 F.2d 96 (2nd Cir. 1984), cert. den. 469 U.S. 936. The court also cited Thomas v. Culberg, 741 F.Supp. 77 (S.D.N.Y.
  • 1990), upholding section 9.41 of the M.H.L., which permits police officers to take into custody a person
  • who appears to be mentally ill. The court in Matter of K.L. noted that these warrantless detention
  • New York State Assisted Outpatient Treatment Program Evaluation 81
  • provisions were upheld, even though, unlike detentions pursuant to Kendra’s Law, they do not follow from earlier judicial findings.
  • 45.   Matter of K.L., 302 A.D.2d 388, 389 (Second Dept., 2003)
  • 46.   Id.
  • 47.   Id., at 390 (citations omitted).
  • 48.   424 U.S. 319.
  • 49.   Matter of K.L., 302 A.D.2d 388, 391.
  • 50.   Id.
  • 51.   Id., at 391-392
  • 52.   Matter of K.L., 1 N.Y.3d 362 (2004).
  • 53.   Id., at 369.
  • 54.   Id., at 370.
  • 55.   Id.
  • 56.   Id., at 371-372.
  • 57.   Id., at 372.
  • 58.   Id.
  • 59.   Id.
  • 60.   Id., at 373-374
  • 61.   Id., At 374
  • 62.   Matter of Sarkis, (NYLJ, Aug. 18, 2000, at 29, col 6).
  • 63.   Id.
  • 64.   Id.
  • 65.   In the Matter of South Beach Psychiatric Center, etc., respondent; Andre R., 727 N.Y.S.2d 149, 150
  • (Second Dept. 2001), (citations omitted).
  • 66.   Matter of Dailey, 713 N.Y.S.2d 660, (Sup. Ct. Queens County, 2000).
  • 67.   Matter of Dailey, 713 N.Y.S.2d at 663 (emphasis in original).
  • 68.   In the Matter of Pilgrim Psychiatric Center v. Anthony F., 18601/01 (S.Ct. Suffolk Cty, 2002), (Order
  • Denying Motion to Dismiss Kendra’s Law Petition).
  • 69.   In the Matter of Weinstock, appellant: Hector A. (Anonymous), respondent, 733 N.Y.S.2d 243 (Second
  • Department, 2001).
  • 70.   Id., at 245.
  • 71.   In the Matter of Weinstock, for an order Authorizing Outpatient treatment for Julio H., 723 N.Y.S.2d
  • 617 (Sup. Ct. Kings County, 2001).
  • 72.   Id., at 619.
  • 73.   See, In the Matter of Weinstock, for an Order Authorizing Assisted Outpatient Treatment for Shali K.,
  • 742 N.Y.S.2d 447 (Sup.Ct., Kings County 2002), where the court accepted the argument that a violent act in the hospital may count under the statute, but denied the petition because petitioner failed to establish a nexus between the violent act and respondent’s treatment failures.
  • 74.   In the Matter of Sullivan, for an Order Authorizing Outpatient Treatment for Nathan R., 710 N.Y.S.2d
  • 804 (Sup Ct. Queens County, 2000).
  • 75.   M.H.L. section 9.60(e)(3)(i).
  • 76.   M.H.L. section 9.60(h)(4).
  • 77.   Matter of Nathan R., 710 N.Y.S.2d at 805 (quoting respondent’s counsel).
  • 78.   Id., at 805.
  • 79.   Id., at 806.
  • 80.   Id.
  • 81.   Amin v. Rose F., (NYLJ, December 7, 2000, at 31, col 1).
  • 82.   Id.
  • 83.   In the Matter of Rose F. v. Amin, 739 N.Y.S2d 834 (Second Dept. 2002).
  • 84.   Matter of Director of Community Services, for an Order Authorizing Assisted Outpatient Treatment for
  • Jason L., 715 N.Y.S.2d 833 (Sup. Ct. Monroe County, 2000).
  • 85.   Id., at 189.
  • 86.   In the Matter of Sullivan, for an Order Authorizing Outpatient Treatment for Jesus A., 710 N.Y.S.2d
  • 853 (Sup. Ct. Queens County, 2000).
  • 87.   Id., at 857 (citations omitted).
  • 82 New York State Assisted Outpatient Treatment Program Evaluation
  • 88.   Id. (Citations omitted).
  • 89.   M.H.L. section 9.60(g).
  • 90.   Matter of Nancy H., No. 125/2000 – MI (Dutchess Cty, 2000), (Order Denying Motion to Dismiss for
  • Lack of Subject Matter Jurisdiction).
  • 91.   Matter of Noah C., No. 8598 (Otsego Cty, 2003), (Order Granting Motion to Dismiss for Failure to
  • Notice Patient’s Counsel Prior to Examination).
  • 92.   No. 981-05 (Sup. Ct. Sullivan County, June 2, 2005).
  • 93.   No. 21474/04 (Sup. Ct. Suffolk County, March 16, 2005
  • 94.   2009 Slip. Op. 04232, Appellate Division, Second Department.
  • 95.   “Representative Payee Status” refers to the mechanism whereby a representative is appointed to receive certain funds on behalf of the patient, and use those funds to pay specific financial obligations for the patient, such as rent.
  • 96.   Id., at 7.
  • 97.   In re Application of Manhattan Psychiatric Center, 728 N.Y.S.2d 37 (Second Dept., 2001).
  • 98.   Because the court did eventually sign an AOT order for the patient, the matter would appear to be beyond appellate review, based on the mootness doctrine. The Second Department accepted the case as an exception to the mootness doctrine, because it is Alikely to be repeated, it involves a phenomenon which typically evades review, and it implicates substantial and novel issues. Id., at 39.
  • 99.   Id., at 42.
  • 100.  Id., at 43.
  • 101.  Id., at 43, 44 (citations omitted).
  • 102.  See also In the Matter of Endress, for an order Authorizing Outpatient Treatment for Barry H., 732
  • N.Y.S.2d 549 (Sup. Ct. Onieda County, 2001). The court in Endress believed that the patient should not be released into the community at all, but citing Matter of Manhattan Psychiatric Center, reluctantly granted the AOT petition, as the most appropriate outcome, given its limited alternatives.