Time to Strengthen Kendra’s Law

A new bill would improve care for the mentally ill.
By  DJ Jaffe

As published in City Journal Spring 2011 Vol 21, Number 2, page 11.
City Journal is published by the Manhattan Institute

In 1999, journalist and photographer Kendra Webdale was pushed to her death under a subway train by a man with schizophrenia whom New York State’s Office of Mental Health (OMH) had allowed to go untreated. In response, state legislators finally passed a law which lets courts order seriously mentally ill people with a past history of violence and who pose a threat of future violence to enter outpatient treatment. They named it “Kendra’s Law” and it has been a huge success. In 2005, the OMH found that after entering court-ordered outpatient treatment people covered by the law were far less likely to harm themselves or others, damage property, or abuse alcohol or drugs. The law also saved money by dramatically  reducing psychiatric hospitalizations, arrests, and incarcerations.
Despite these findings, the OMH has always undermined Kendra’s Law. The agency opposed its passage in 1999, and current OMH commissioner Michael Hogan argues that the law is “stigmatizing” to the mentally ill and that “treatments that are theoretically the best but not accepted by an individual are unlikely to be effective.” When the legislature allocated OMH $125 million to implement it in 2000, the agency diverted a portion of those funds to people who agreed to stay in treatment without a court order—that is, people who by definition weren’t covered by the law.
The OMH’s refusal to fund enough Kendra’s Law case managers forces the existing managers to struggle under far too many caseloads. As a consequence, when hospital and prison officials contact the OMH about a patient or inmate who might need to be ordered into treatment, they are frequently discouraged by the agency’s long delays and simply discharge their wards without any requirement to stay in treatment. 

In addition, the OMH generously funds the New York Association of Psychiatric Rehabilitation Services (NYAPRS), a trade association whose main function seems to be to prevent the treatment of people with serious mental illness under Kendra’s Law. NYAPRS has argued, both in press releases and in testimony to the state legislature that the law is unconstitutional; courts have nevertheless found it an appropriate use of state’s police and parens patriae powers. In 2005, NYAPRS tried a new tack, alleging that Kendra’s Law was racially biased. Responding to this claim, the state legislature funded an independent study by Duke University. The study’s conclusion. “We find no evidence that [Kendra’s Law] is disproportionately selecting African Americans for court orders, nor is there evidence of a disproportionate effect on other minority populations.”

The result of OMH’s obstructionism is that only 1,900 individuals—fewer than one-fifth the number that the agency originally predicted—are covered by Kendra’s Law.  Another 7,000 had their court orders expire without an OMH review of whether that was safe for them and for the public. The OMH continues allowing the release of mentally ill patients and prisoners who have a history of being dangerous without first evaluating whether they need court-ordered treatment to prevent them from becoming violent again.
Fortunately, a legislative remedy is at hand: the Kendra’s Law Care Improvement Act, recently introduced by state assemblywoman Aileen Gunther, a registered nurse who has worked in a psychiatric unit. Among other things, the bill would close the loophole through which people who were hospitalized because they were a “danger to self or others,” as well as those who received mental-illness services while imprisoned, can be released without anyone’s determining whether a court order to undergo outpatient treatment is necessary. A diverse group of organizations, including the Alliance on Mental Illness of New York State, the Harlem Alliance for the Mentally Ill, the New York State Chiefs of Police, and the New York State District Attorneys Association of the State of New York, backs Gunther’s bill. Governor Cuomo should get behind the bill, too. Failure to pass it would be inhumane to a suffering population and potentially dangerous to the public.
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(Addendum: The bill number in the Assembly is A6987. Subsequent to publication of this in May 2011, NYS Senator Catherine Young introduced a companion bill, S4881.)