New York Lawyers
For The Public Interest, Inc.
151 West 30th Street, 11th Floor
New York, NY 10001-4007
Tel 212-244-4664 Fax 212-244-4570
TTD (212-244-3692
Email info@nylpi.org
Website www.nylpi.org

Implementation of
“Kendra’s Law”
Is Severely Biased
April 7, 2005

Implementation of “Kendra’s Law” Is Severely Biased
April 7, 2005

Introduction1
Since 1999 “Kendra’s Law” has allowed New York courts to mandate some
people with mental illness to accept outpatient treatment. It is about to sunset on June 30,
2005. The Legislature and Governor must decide whether to continue it, modify it or
abandon it. We submit the law must be modified to eliminate compulsion in order to
afford basic fairness, but its enhanced access to services for people in greatest need
should be retained.
There are major racial, ethnic, and geographic disparities throughout New York
State in the implementation of “Kendra’s Law”. Black people are almost five times as
likely as White people to be subjected to this law – which dramatically reduces freedom
of choice over their treatment and their lives - and Hispanic people are two and a half
times as likely as non-Hispanic White people. People who live in New York City are
more than four times as likely to be subjected to orders as people living in the rest of the
state. Also, contrary to how it has been sold, the law is used mainly on people with
multiple psychiatric hospitalizations but no histories of hurting others.
Until now these facts have gone largely unreported. They raise serious questions
about our mental health system which we must address, and indicate that the “Kendra’s
Law” must not be extended in any form involving compulsion.
“Kendra’s Law” for the first time authorized New York courts to mandate
outpatient mental health treatment, with the court order backed up by the threat of seizure
by police and a three-day lockup period in a psychiatric hospital in the event of “noncompliance.”2 This new law applies to any person with a mental illness who meets its
broad criteria. It fundamentally alters mental health care in thousands of cases by
reducing freedom of choice over many important aspects of life, making specified
treatment compulsory, and causing treatment providers to abandon confidentiality to
participate in monitoring and enforcement.

1

“Kendra’s Law” has another feature, which unfortunately is now tied to
compulsion. It provides a kind of “right to treatment”: people subject to “Kendra’s Law”
court orders have priority access to services, some of which are scarce, and mental health
officials are responsible for lining up the services ordered by the court. No right to
outpatient treatment exists in our State except for those subjected to “Kendra’s Law”
compulsory court orders. A perverse result of this tie is that orders are sometimes sought
simply to get people services.
As a society, we should not tolerate shortages of vital services which lead to
rationing, but we have – for example, shortages of case managers and mental health
housing have been obvious in recent years. But until we eliminate shortages, a system
assigning priorities and providing a right to treatment on a voluntary basis is a rational
idea. There is no reason, however, why enhanced access to services must be shackled to
compulsion. It would be perfectly possible and sensible to prioritize certain people for
services and guarantee that needed services are available to them, without taking away
their privacy or freedom. This could be accomplished without resorting to courts or court
orders.
In this report, we analyze information from the State itself to focus on facts it
elects not to emphasize. Our principal findings are quite disturbing:
•

Based on population, Black people in New York State are close to five times
more likely than White people to be subjected to “Kendra’s Law” court orders
that dramatically reduce freedom of choice over their treatment and other basic
aspects of their lives. Hispanic people are two and a half times more likely to be
subjected to orders than White people.3 White people are subjected to “Kendra’s
Law” orders far less than one would expect, based on population. Here is a
summary of the statewide figures:
Subject to Court Orders4

Population5

Blacks

42%

16%

Hispanics

21%

15%

Whites

34%

62%

2

•

Severe racial and ethnic disparities exist whether one compares those subjected to
the law to the general population, or to the narrower group with severe and
persistent mental illnesses, whom one might expect to be especially likely to be
subjected to the law. In other words, these disparities cannot be explained away
by some racial or ethnic difference in the distribution of serious mental illness.

•

Disparities exist not just in the state as a whole, but also in each geographic area
where the law is used extensively.

•

New York City accounts for 76% of court orders statewide, although it has only
42% of the state’s population.6 Nevertheless, disparities cannot be explained
away by the distribution of people of different groups across the state or by New
York City’s heavy use of the law. While 42% of the people statewide subjected to
court orders are Black, only 27% of New York City’s population is Black.7

•

Whether one is subject to the law depends greatly on where one lives. A
dramatically disproportionate number of cases have occurred in New York City
and Erie County, while in many counties the law is barely utilized or ignored. As
of March 1, 2005, 14 of 62 counties in the State – almost one in four – still had no
orders at all, while New York City had racked up 3,017. State data indicate the
geographic disparities do not correspond to the distribution of serious mental
illness.8

•

The law is used primarily against people who have had more than one psychiatric
hospitalization but no history of hurting others. This is true despite the fact that
the very name of the law and the way it has been sold suggest it is aimed at people
who commit random acts of violence. The State’s own report indicates that only
15% had done any physical harm to another during the period before their orders
started, meaning that 85% had not.9

3

Statistics alone cannot tell us why application of the law is so skewed racially and
ethnically. There are a number of possibilities, including:
conscious or unconscious bias on the part of some involved in referring and
selecting people to whom to apply the law,
people being selected from already-biased pools,
unequal access to mental health treatment,
Black or Hispanic people finding the treatment available less
suited to their needs, and
some combination of the above.10
But the facts very strongly indicate that in some way the failings of the mental health
system are resulting in people of color disproportionately losing their freedom of choice.
Neither New York State nor the law’s biggest user - New York City - appears to
have made any attempt to understand or explain these figures, although the biased nature
of implementation has been evident since the beginning of data collection. New York
State did not even plan to collect data on the race or ethnicity of people subjected to the
law until we publicly insisted. Both the State and the City have the ability as well as the
obligation to probe what lies behind these numbers. To begin with, both can gather more
refined statistics than we have access to – both maintain databases which include
demographic and other data on people subjected to the law. Neither has provided us
access. And in two major reports including one just released, the State’s only comment
has been that the pool of people subjected to court-ordered treatment is “diverse,”11 and
so far as we know the City has said nothing.
As the “Kendra’s Law” sunset approaches, the State Office of Mental Health has
released a report proclaiming great successes during the five years since it became
effective.12 Beyond doubt, the report demonstrates that there are many benefits to

4

providing enhanced access to services to people who especially need them, but more than
that it does not show. The state’s report appears on the surface to be credible and
scientific, but in many ways it is really propaganda with charts. While it claims many
apparent benefits for those subjected to court orders, it is impossible to tell from OMH’s
data what is accomplished by compulsion and what by enhanced access to services, both
of which are brought into play by “Kendra’s Law” as it is now written.13 The report’s
methodology is very flawed in many other ways. It soft-peddles many facts that are
unhelpful to pushing for re-enactment of compulsion, including that the law is used
primarily on people with multiple hospitalizations but not histories of violence toward
others. And it passes over without any meaningful comment the huge racial, ethnic and
geographic disparities the State’s own data show. (See Appendix C on some of the OMH
report’s shortcomings.)
We submit it is immoral and irresponsible to continue a system of compulsion
that is so biased. It is also unconscionable to let time pass without being able to explain
what is wrong with our mental health system that produces such biased effects. Like the
proverbial canary in the mineshaft, the implementation of Kendra’s Law provides a
warning. When the bird dies, we must pay attention. And officials, who act in the name
of all the people, must stop disproportionately taking away the freedom of some of the
people – especially those who belong to groups that historically have been so oppressed.
We therefore submit that “Kendra’s Law” must be substantially amended. It must
be stripped of compulsion, but its enhanced access to services should continue.
Ultimately, New York State must make high quality mental health services of all types
fully available and acceptable to all who need them. Until that goal is achieved, the State
may sensibly give high priority for scarce services to certain individuals, and hold
officials responsible for making sure that services are available to them. The present
criteria for “Kendra’s Law” provide one reasonable definition of those for whom this
might be done. It can and must be done without taking away freedom or altering the
traditional relationships of trust upon which successful mental health treatment is based.
The state can continue to offer the “right to treatment” in “Kendra’s Law” while avoiding
any racially, ethnically or geographically skewed losses of freedom and privacy, and that
is what it should do.

5

Background
The State Legislature and Governor hurriedly approved “Kendra’s Law” in 1999
following a blitz of publicity over a horrific tragedy in a New York City subway.
Andrew Goldstein, a man with schizophrenia who was unable to secure the services he
needed to stay well, pushed an innocent young woman, Kendra Webdale, into the path of
an oncoming train, killing her.
The new law, which took effect in November 1999, permits a court to order
certain people with mental illness to accept outpatient treatment for their illnesses.
Orders can be very intrusive and take away freedom of choice in many fundamental
aspects of people’s lives.14 Each order is required to include case management, and the
case manager is required to report on the client’s “compliance” to public mental health
officials. Those actually providing treatment also report on “compliance,” thus ending a
large part of the confidentiality of treatment relationships which we ordinarily expect. In
addition, orders can compel the taking of medications that may have serious side-effects,
participation in individual or group therapy at a specified clinic, participation in day
treatment or rehabilitation programs that take up a majority of people’s daytime hours,
residence in a particular place which may have extensive rules like curfews, and blood or
urine testing to determine whether one is taking medication and/or abstaining from
alcohol or street drugs.15 In other words, the orders can control very fundamental aspects
of life in which we traditionally expect to have freedom – not only how and where one is
treated, but also by whom and with whom one must discuss deeply personal matters –
and including where and with whom one lives. OMH figures on how often people
subjected to court orders participate in various services also give some idea of how
frequently these various kinds of treatment are mandated:
88% medication management,
75% individual & group therapy,
22% day programs,

40% substance abuse programs,
37% blood or urine testing, and
31% housing or housing support services.16

If a person subject to a court order does not “comply” and there is “reason to
believe” that he or she meets the standard for involuntary hospitalization, the law permits
the person to be picked up by the police and held involuntarily in a hospital for up to 72
hours before a decision must be made whether he or she actually does meet the legal

6

criteria for further involuntary hospitalization.17 Frequently the individual is seized by
armed, uniformed police, handcuffed, and transported to the hospital in a marked cruiser.
“Kendra’s Law” can be applied to a wide range of people. They are not people
who are presently considered dangerous to themselves or others - under New York law
people who fit that description are confined in institutions.18 The most important criteria
are that one must have been hospitalized twice in the last three years, or have done,
attempted or threatened some act of serious bodily harm to oneself or someone else in the
last four years. The hospitalizations need not have been involuntary, and the act, attempt
or threat need not have been taken seriously enough to lead to arrest or commitment to a
hospital, but they must have resulted from “non-compliance” with recommended
treatment. The two hospitalization prong is by far the most important in practice. The
other criteria – other than age of 18 or older – are all subjective and based largely on
psychiatric opinion or prediction.19
Passage of the law brought profound changes to the mental health system. Never
before had a New York court been authorized to mandate that people with mental
illnesses be made to take medications and accept services when not committed to a
hospital.20 For the first time, outpatient treatment providers were made part of a system of
monitoring “compliance” with mandated treatment rather than required to treat the
individual’s acceptance or non-acceptance of treatment as part of a confidential
relationship.
The drafters used clever language which is far from transparent. By naming the
law after Kendra Webdale, they not only honored her memory, but also subtly suggested
that it is concerned primarily with people who commit violence against others – which it
is not. The name also suggests that Ms. Webdale might be alive today had her attacker
been compelled to accept treatment – whereas in fact he was trying to get services but
could not because they were expensive and/or in short supply.21 The law also refers to the
system of court-mandated treatment as “assisted outpatient treatment,” although the
concept is usually called by the more straightforward name “involuntary outpatient
commitment.”
“Kendra’s Law” also created novel obligations for public mental health officials
to line up specified treatment needed by particular individuals who are not in an

7

institution.22 It created a kind of “right to treatment,” but only for people compelled by
court order to accept the treatment. “Kendra’s Law” as we now know it inseparably ties
this obligation for officials to provide services to compulsion for clients to accept them.
There is no reason, however, why the obligation to provide services could not be created
for the benefit of a defined high-need group of people, who are nevertheless left free to
accept the services or not, and to enjoy the usual confidentiality in their treatment. Such
an arrangement would not suffer from the great moral and ethical problems created by the
present law, particularly in view of its racially, ethnically and geographically biased
application.
Disparities in Detail
“Kendra’s Law “ is used very unevenly across the state. By far the biggest users
of court orders are New York City and Nassau and Suffolk Counties on Long Island.
March 1, 2005 state totals of orders issued are attached as Appendix B. Here is a
summary:
New York City (5 counties or boroughs)
Nassau County
Suffolk County
41 other counties combined
14 remaining counties
Total for all 62 counties including NYC

3,017 orders
163
249
529
___0
3,958

In other words, New York City had racked up 3,017 orders by March 1, 2005, and the
two Long Island counties had quite significant numbers of orders, but after them the
numbers fell off sharply, and there were still 14 of 62 counties – almost a quarter – with
no orders at all. In addition, Erie County – which includes Buffalo - is a heavy user of the
law, although not by way of court orders, as we will explain below. We will look in detail
at the most active localities.
As already noted Black people account for 42% of “Kendra’s Law” court orders
statewide but make up only 16% of the population, Hispanic people account for 21% of
the orders but make up only 15% of the population, and White people account for 34% of
the orders although they make up 62% of the population.23 The disparities are not just a
statewide phenomenon. They exist even when one focuses on individual counties and
boroughs.

8

Here is a table focusing on Black people in each New York City borough and
Erie, Nassau and Suffolk Counties. It shows the portion of the general population they
make up in each borough and county (first column). It shows also that Black people make
up a far greater portion of those in each borough and county subjected to “Kendra’s
Law” orders (third column).
Borough/ % Gen. Pop.
County Black24

% “SPMI”
Black (NonHispanic)26

% under court orders
Black (Non-Hispanic)25

Bronx
Brooklyn
Manhattan
Queens
Staten Is.
Erie
Nassau
Suffolk

32
30
35
31
16
25
18
15

50
53
40
38
26
45
46
22

36
36
18
20
10
13
10
7

Could these disparities be explained by Black people as a group being more likely
to be seriously mentally ill? The State’s own statistics indicate that the disparities cannot
be dismissed in this way. Those subjected to “Kendra’s Law” are more likely to be Black
even than people in the same borough or county whom treatment providers count as
“severely and persistently mentally ill” or “ SPMI” (second column) – i.e., those whose
serious illness might make them candidates for “Kendra’s Law.” The table clearly shows
that by some means, Black people are disproportionately singled out for “Kendra’s Law”
orders in each of these localities.
Here is a statewide comparison of the racial and ethnic identification of those
treatment providers count as “SPMI” with those subject to “Kendra’s Law” orders:
“SPMI”27

Court Orders

Black (non-Hispanic)

24%

42%

Hispanic

17%

21%

White (non-Hispanic)

57%

34%

By this comparison, Black people are almost three times as likely as their White
counterparts to be subjected to “Kendra’s Law” orders, and Hispanic people are twice as
likely.28

9

Erie County operates somewhat differently under “Kendra’s Law” from the other
most active counties and requires a particular note. It puts far more emphasis on so-called
“voluntary agreements” than on court orders. Statewide, “voluntary agreements” are used
frequently, but court orders have outnumbered agreements 4 to 3 statewide.29 However,
in Erie County the relationship is reversed, and agreements outnumber orders 5 to 1.30
“Voluntary agreements” are voluntary only in name. They are entered under
threat of court proceedings, which present a very intimidating prospect for some people
who are mentally ill. Interviews with people who had signed them, with mental health
agency staff and with lawyers indicated that in Erie County agreements are often
extracted without the individual having the advice of a lawyer. It is clear that at least
some who sign them are thoroughly intimidated and unsure of their options.
People picked out for “voluntary agreements” are asked to adhere to a prescribed
treatment plan, and so long as they “comply,” mental health officials agree to forego
seeking court orders. “Voluntary agreements” do not require the expensive formalities for
a court order – for example a physician’s evaluation of the individual, the physician’s
affidavit and testimony, and an attorney’s preparation of court papers and presentation of
the case in court.
“Voluntary agreements” are similar in coercion to court orders. The monitoring
arrangements that make up a large part of the coercive effect of court orders are present.
So also is the threat of being taken to a hospital for evaluation, much as under a court
order - except that the period of confinement before a decision is due on further
confinement is shorter. On the other hand, the intimidating court hearing hangs over the
individual’s head, whereas under an order it has already occurred. In some locations
including Erie County and New York City, “voluntary agreements” are written. In others
they are oral.
The racial and ethnic makeup of Erie County’s total “Kendra’s Law” caseload has
tended to be similar to its figures for court orders alone. As of April 1, 2002, including
both court orders and “voluntary agreements,” those “active” under its “Kendra’s Law”
program were 53% Black, 3% Hispanic and 44 % White.31 Erie County’s population is
13% Black, 3% Hispanic, and 81% White (Non-Hispanic).32

10

We have already noted that New York City has 76% of the state’s court orders but
only 42% of its population, and that only a few other areas are active in using “Kendra’s
Law.” Can the very disproportionate distribution of orders throughout the state be
explained by differences in the distribution of serious mental illness? Again, the state’s
own statistics indicate that the answer is “no.”
% of “SPMI” Statewide33

% of Court Orders Statewide

New York City

51%

76%

Long Island
(Nassau & Suffolk)

10%

10%

Balance of State

39%

13%

A person counted as “SPMI” who lives in New York City is four and a half times
as likely to be subjected to a “Kendra’s Law” order as someone counted as “SPMI” who
lives in the State in an area other than New York City or Long Island. Something other
than the distribution of serious mental illness is at work. “Kendra’s Law” leaves it mainly
to localities to determine how much to rely on compulsion and how much effort and
money to spend on court orders. Major political and philosophical differences must be at
work. Most areas of the State appear to believe they can get treatment to people with very
little use of coercion. Again, the result is unfair. Where one happens to live is a huge
factor in determining whether one will lose freedom to a “Kendra’s Law” order.
Conclusion
Our first principle should be to provide excellent mental health services to all who
need them, which they will want to accept on a voluntary basis. But until we eliminate
shortages, priority access to services can and should be provided to people who need
them most, entirely without compulsion. “Kendra’s Law” as now written inseparably ties
the two together, but the law need not do that.
Regardless of what was intended, “Kendra’s Law” brings compulsion down on
the heads of Black people almost five times as often as on White people, based on
population, and on Hispanic people two and a half times as often. The compulsion always
involves a loss of confidentiality in treatment and of autonomy, and often takes over huge
areas of people’s decision-making about their lives. In addition, people who live in New
York City, Long Island and Erie County are far more likely to lose their autonomy to

11

“Kendra’s Law” than people elsewhere in the state. None of these disparities can be
explained by the distribution of serious mental illness. They have not been addressed by
those who support “Kendra’s Law’s” compulsion. They raise serious questions about the
fairness of our mental health system overall, as well as specifically about ”Kendra’s
Law.” It is essential that we come to understand what lies behind these numbers. But
whatever causes them, the failings of the system should not be disproportionately borne
by people in certain groups, particularly those historically so oppressed.
Further, notwithstanding its name, the law is used primarily on people with
multiple hospitalizations, but not histories of hurting others.
There is no evidence that compulsion in outpatient treatment accomplishes
anything that cannot be achieved by enhanced voluntary access to services.
Five years are more than enough to show that “Kendra’s Law” as now written
causes fundamental injustice. The compulsion must end. It would be fine and sensible, on
the other hand, to continue to prioritize high-need individuals for scarce services, so long
as they remain scarce, and to continue to mandate public officials to line up services for
those individuals.34 That is the just, humane and wise policy the State should adopt now,
to follow the sunset of the original “Kendra’s Law.”
1

This report is the work of New York Lawyers for the Public Interest, which is solely
responsible for its content. John A. Gresham, Senior Litigation Counsel, is responsible
for its final form. We gratefully acknowledge financial support to monitor and report on
the implementation of “Kendra’s Law” from the New York Foundation, granted on an
application supported by The Judge David L. Bazelon Center for Mental Health Law,
Community Access, Disability Advocates, Inc., the Mental Health Empowerment Project,
the New York Association of Psychiatric Rehabilitation Services, the New York Civil
Liberties Union, and the Urban Justice Center, all of which have provided advice and
assistance. Disability Advocates, Inc., and the Mental Health Empowerment Project
specifically endorse our recommendations in this report. We gratefully acknowledge also
the contributions of Steven R. Donziger, Esq., who helped with the research and
provided an initial draft of this report, Dr. Natasha Frost, who assisted with the statistical
analyses, and attorney/social worker Julia Spring, who analyzed “Kendra’s Law” papers
we secured from the state through the Freedom of Information Law.
2

“Kendra’s Law” is distinct from longstanding provisions of New York law that authorize courts to approve
involuntary commitment to inpatient treatment in a hospital if a person poses a substantial threat of
physical harm to self or to others. Under “Kendra’s Law”, courts mandate involuntary outpatient treatment
for people who are not presently “dangerous to self or others.” A copy of MHL ş 9.60, the heart of
Kendra’s Law, is at Appendix A.
3
Those subjected to the law tend to be male and younger as well as people of color. According to state
data, 66% are male, and the average age is 37.5 years. New York State Office of Mental Health, Final

12

Report on the Status of Assisted Outpatient Treatment, March 1, 2005, at p. 9, see
http://www.omh.state.ny.us/omhweb/Kendra_web/finalreport/.
4
Id.
5
2000 U.S. census, see http://quickfacts.census.gov/qfd/states/36/3651000.html. The State Office of
Mental Health and the Census Bureau use different race and ethnicity concepts in their figures. Even so, it
is obvious that the disparities are massive. For example, OMH excludes people of Hispanic origin from its
counts of both Black and White people. Census summary tables include figures on Whites not of Hispanic
origin – the figures used in this report - but we are working with census figures for Black people that
include those of Hispanic origin. If we could exclude Black people of Hispanic origin from the census
figures for Blacks, the disparities we report would be even greater.
6
Through March 1, 2005, see OMH’s figures at Appendix B. The population figure is from the 2000 U.S.
census.
7
2000 U.S. census, see http://quickfacts.census.gov/qfd/states/36/3651000.html.
8
See pp. 8 & 11, below.
9
OMH Final Report at pp. 9 & 16.
10
According to the Surgeon General:
Striking Disparities in Mental Health Care Are Found for Racial and Ethnic Minorities
This Supplement documents the existence of several disparities affecting mental health care of
racial and ethnic minorities compared with Whites:
Minorities have less access to, and availability of, mental health services.
Minorities are less likely to receive needed mental health services.
Minorities in treatment often receive a poorer quality of mental health care.
Minorities are underrepresented in mental health research.
…
More is known about the disparities than the reasons behind them. A constellation of barriers
deters minorities from reaching treatment. Many of these barriers operate for all Americans: cost,
fragmentation of services, lack of availability of services, and societal stigma toward mental
illness (DHHS, 1999). But additional barriers deter racial and ethnic minorities; mistrust and fear
of treatment, racism and discrimination, and differences in language and communication. The
ability for consumers3 and providers to communicate with one another is essential for all aspects
of health care, yet it carries special significance in the area of mental health because mental
disorders affect thoughts, moods, and the highest integrative aspects of behavior. The diagnosis
and treatment of mental disorders greatly depend on verbal communication and trust between
patient and clinician. More broadly, mental health care disparities may also stem from minorities'
historical and present day struggles with racism and discrimination, which affect their mental
health and contribute to their lower economic, social, and political status. The cumulative weight
and interplay of all barriers to care, not any single one alone, is likely responsible for mental
health disparities.
U. S. Department of Health and Human Services, Mental Health: Culture, Race, and Ethnicity, Executive
Summary, 2001, at 13, see http://www.surgeongeneral.gov/library/mentalhealth/cre/execsummary-2.html.
11
New York State Office of Mental Health, An Interim Report on the Status of Assisted Outpatient
Treatment, January 1, 2003, at pp. 6-7, see
http://www.omh.state.ny.us/omhweb/kendra%5Fweb/interimreport/aotreport.pdf, and OMH Final
Report at p. 9.
12
New York State Office of Mental Health, Final Report on the Status of Assisted Outpatient Treatment,
March 1, 2005, see http://www.omh.state.ny.us/omhweb/Kendra_web/finalreport/.
13
After reviewing the empirical studies – some far more sophisticated than OMH’s report - and the
experience of several states, the Rand Corporation concluded,

13

There are no empirical data that allow us to assess the policy tradeoffs between involuntary
outpatient treatment and alternatives such as assertive community treatment. However, we believe
the policy question can be explicitly reframed: “Does adding a court order to the provision of
intensive treatment significantly improve outcomes over and above the intensive treatment itself?”
and, if so, “Is the addition of such orders cost-effective?” Unfortunately, the existing empirical
studies do not provide a definitive answer to these questions either.
M. Susan Ridgely, Randy Borum and John Petrila, The Effectiveness of Involuntary Outpatient Treatment,
Rand Corporation, 2001, at p. xix, see http://www.rand.org/publications/MR/MR1340/mr1340.sum.pdf.
14
The individual has the right to “actively participate in the development” of the treatment plan which he or
she will be ordered to follow, MHL s 9.600(i)(1) (see Appendix A), but this certainly does not mean that
his or her wishes prevail on even a single detail. If the individual wanted to receive the treatment in the
treatment plan, one would hope no one would think of bringing a “Kendra’s Law” proceeding.
15
MHL ş 9.60(a)(1) (see Appendix A).
16
OMH Final Report at 11. Our own figures on the level of intrusiveness of the orders are from 93 sets of
court papers from New York City and Erie County which we obtained (minus individual identifying
information) from the Office of Mental Health under the Freedom of Information Law. Our figures for
what was mandated in these cases are 99% medication
45% individual or group therapy
41% day treatment
9% education or

53% combined treatment for mental illness & chemical abuse
69% blood and/or urine testing
27% specified housing
vocational programs.

Regardless of which set of figures is more informative, it is obvious that orders are often broadly intrusive,
going far beyond case management and medication.
17
MHL ş 9.60(n) (see Appendix A). This is a longer period than people can generally be held in a hospital
before a decision must be made on whether they meet the criteria for continued confinement. For example,
in a Comprehensive Psychiatric Emergency Program, an initial decision must be made within six hours,
MHL ş 9.40(b). Monitoring of “compliance” and the length of this “evaluation period” are the main
practical ingredients of compulsion under “Kendra’s Law.” There is also – of course – the inherently
coercive effect of being ordered to do something in a court room by a judge.
18
MHL ş 9.60(c) & (j)(2) (see Appendix A). Which and how many of the potentially “eligible” people are
targeted is left largely up to local mental health officials. In theory a wide range of people can petition the
court to issue an order - ş 9.60(e)(1). But in practice, because of the cost of an examination and testimony
by a physician and the legal work to put on a case in court, most petitions are brought by public mental
health officials, and most of the rest by hospitals. Therefore the degree to which the law is used is left
largely to local decision.
19
One of the criteria on which the testifying psychiatrist must persuade the judge is that the person is
unlikely to participate in recommended treatment because of his or her illness, ş 9.60(c)(5) (see Appendix
A). Proponents of coercion argue that some people with mental illness do not appreciate their illness or
their need for treatment, and so must be coerced for their own good. But it is very difficult to understand
why people of color would be several times as likely to fail to appreciate their need for treatment. Also, we
believe the best approach is to make services people like, want and trust readily available to them.
20
Most other states have passed some form of involuntary outpatient commitment law, but in the majority
the laws apply only to people who meet the same criteria which would permit involuntary hospitalization,
so they provide an alternative to confinement. New York’s “Kendra’s Law” casts a much wider net. Most
states use outpatient commitment laws only rarely. See, for example E. Fuller Torrey and Robert J. Kaplan,
A National Survey of the Use of Outpatient Commitment, 46 Psychiatric Services 78 (1995).
21
Michael Winerip, Bedlam in the Streets, THE NEW YORK TIMES MAGAZINE, May 23, 1999, at 44.
22
MHL şş 7.17(f)(2), 9.47(b), 9.48(a) & 9.60(j)(5). For many years Articles 7 & 41 of the Mental Hygiene
Law have included requirements that public officials plan a system of care, but there were no obligations to
provide care to any particular individual who needed it, other than the Constitutional requirements to
provide needed care for those confined in institutions.

14

23

North Carolina has a roughly similar law based on prediction of deterioration without treatment,
N.C.G.S. ş 122C-263(d)(1). A study of its use in nine counties noted that two thirds of the people chosen
for application of the law were Black, and almost all were poor. According to the Census Bureau,
approximately 22% of North Carolina’s people are Black. Compare Marvin S. Swartz, Jeffrey W.
Swanson, Virginia Hiday et al., A Randomized Controlled Trial of Outpatient Commitment in North
Carolina, 52 Psychiatric Services 325, 327 (2001) with http://quickfacts.census.gov/qfd/states/37000.html.
24
2000 U.S. census.
25
OMH figures for orders through November, 2001, obtained through the Freedom of Information Law.
26
1999 OMH Patient Characteristics Survey figures on people who were 18 years or older and classified
“SPMI,” which we obtained through FOIL. The survey covered over 166,000 people treated for mental
illness throughout the state. People were classified as SPMI if treatment providers believed they had serious
functional limitations because of mental illness. The second and third columns in this table use identical
OMH race and ethnicity categories.
27
Based on 1999 OMH Patient Characteristics Survey statistics for people classified as “SPMI” who were
18 years of age or over – obtained from OMH under FOIL. Both columns in this table use identical OMH
race and ethnicity categories.
28
Disparities based on a comparison of people under court orders to those counted as SPMI are startling
and disturbing - 3:1 and 2:1 - but less extreme than disparities comparing those under orders to the general
population – almost 5:1 and 2.5:1. See p. 2, above. The difference arises in part because treatment providers
in New York State count Black (especially) and Hispanic people as SPMI more often than one would
expect according to population, and White people less. The statewide figures are -

Black
Hispanic
White

General Population

SPMI over 18

16%
15%
62%

24%
17%
57%

These differences also demand explanation and must be addressed. The “SPMI” over 18” figures here are
derived from the 1999 OMH Patient Characteristics Survey.
29
The ratio is about 3 orders to 1 agreement in New York City. See Appendix B.
30
The State statistical tables use another equally non-transparent term for what are often called “voluntary
agreements” - the tables refer to them as “Service Enhancements (Case Management & Oversight).” See
Appendix B.
31
Erie County Department of Mental Health, Statistical Information, Assisted Outpatient Treatment
Program, April 1, 2002. To its credit, Erie County has recognized that the disparities are significant and put
some effort into dealing with them.
32
2000 U.S. Census, see http://quickfacts.census.gov/qfd/states/36/36029.html.
33
Based on 1999 OMH Patient Characteristics Survey, see
http://www.omh.state.ny.us/omhweb/PCS/Survey99/index99.html.
34
Given what has happened to date, it is essential to continue to collect demographic data on the program,
even in a voluntary form.

15

Appendix A

Mental Hygiene Law ş 9.60 Assisted Outpatient Treatment
(a) Definitions. For purposes of this section, the following definitions shall apply:
(1) "assisted outpatient treatment" shall mean categories of outpatient services which
have been ordered by the court pursuant to this section. Such treatment shall include
case management services or assertive community treatment team services to provide
care coordination, and may also include any of the following categories of services:
medication; periodic blood tests or urinalysis to determine compliance with prescribed
medications; individual or group therapy; day or partial day programming activities;
educational and vocational training or activities; alcohol or substance abuse treatment
and counseling and periodic tests for the presence of alcohol or illegal drugs for persons
with a history of alcohol or substance abuse; supervision of living arrangements; and any
other services within a local or unified services plan developed pursuant to article fortyone of this chapter, [FN1] prescribed to treat the person's mental illness and to assist the
person in living and functioning in the community, or to attempt to prevent a relapse or
deterioration that may reasonably be predicted to result in suicide or the need for
hospitalization.
(2) "director" shall mean the director of a hospital licensed or operated by the office of
mental health which operates, directs and supervises an assisted outpatient treatment
program, or the director of community services of a local governmental unit, as such
term is defined in section 41.03 of this chapter, which operates, directs and supervises an
assisted outpatient treatment program.
(3) "director of community services" shall have the same meaning as provided in article
forty-one of this chapter.
(4) "assisted outpatient treatment program" shall mean a system to arrange for and
coordinate the provision of assisted outpatient treatment, to monitor treatment
compliance by assisted outpatients, to evaluate the condition or needs of assisted
outpatients, to take appropriate steps to address the needs of such individuals, and to
ensure compliance with court orders.
(5) "assisted outpatient" or "patient" shall mean the person under a court order to
receive assisted outpatient treatment.
(6) "subject of the petition" or "subject" shall mean the person who is alleged in a
petition, filed pursuant to the provisions of this section, to meet the criteria for assisted
outpatient treatment.
(7) "correctional facility" or "local correctional facility" shall have the same meaning as
defined in section two of the correction law.
(8) "health care proxy" and "health care agent" shall have the same meaning as defined
in article 29-C of the public health law [FN2].

(9) "program coordinator" shall mean an individual appointed by the commissioner of
mental health, pursuant to subdivision (f) of section 7.17 of this chapter, who is
responsible for the oversight and monitoring of assisted outpatient treatment programs.
(b) The director of a hospital licensed or operated by the office of mental health may
operate, direct and supervise an assisted outpatient treatment program as provided in
this section, upon approval by the commissioner of mental health. The director of
community services of a local governmental unit shall operate, direct and supervise an
assisted outpatient treatment program as provided in this section, upon approval by the
commissioner of mental health. Directors of community services of local governmental
units shall be permitted to satisfy the provisions of this subdivision through the operation
of joint assisted outpatient treatment programs. Nothing in this subdivision shall be
interpreted to preclude the combination or coordination of efforts between and among
local governmental units and hospitals in providing and coordinating assisted outpatient
treatment.
(c) Criteria for assisted outpatient treatment. A patient may be ordered to obtain assisted
outpatient treatment if the court finds that:
(1) the patient is eighteen years of age or older; and
(2) the patient is suffering from a mental illness; and
(3) the patient is unlikely to survive safely in the community without supervision, based
on a clinical determination; and
(4) 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 fortyeight months, not including any period in which the person was hospitalized or
incarcerated immediately preceding the filing of the petition; and
(5) the patient 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 the patient's treatment history and current behavior, 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 as defined in section

9.01 of this article; and
(7) it is likely that the patient will benefit from assisted outpatient treatment; and
(8) if the patient has executed a health care proxy as defined in article 29-C of the public
health law, that any directions included in such proxy shall be taken into account by the
court in determining the written treatment plan.
(d) Nothing herein shall preclude a person with a health care proxy from being subject to
a petition pursuant to this chapter and consistent with article 29-C of the public health
law.
(e) Petition to the court. (1) A petition for an order authorizing assisted outpatient
treatment may be filed in the supreme or county court in the county in which the subject
of the petition is present or reasonably believed to be present. A petition to obtain an
order authorizing assisted outpatient treatment may be initiated only by the following
persons:
(i) any person eighteen years of age or older with whom the subject of the petition
resides; or
(ii) the parent, spouse, sibling eighteen years of age or older, or child eighteen years of
age or older of the subject of the petition; or
(iii) the director of a hospital in which the subject of the petition is hospitalized; or
(iv) the director of any public or charitable organization, agency or home providing
mental health services to the subject of the petition in whose institution the subject of
the petition resides; or
(v) a qualified psychiatrist who is either supervising the treatment of or treating the
subject of the petition for a mental illness; or
(vi) the director of community services, or his or her designee, or the social services
official, as defined in the social services law, of the city or county in which the subject of
the petition is present or reasonably believed to be present; or
(vii) a parole officer or probation officer assigned to supervise the subject of the petition.
(2) The petition shall state:
(i) each of the criteria for assisted outpatient treatment as set forth in subdivision (c) of
this section;

(ii) facts which support such petitioner's belief that the person who is the subject of the
petition meets each criterion, provided that the hearing on the petition need not be
limited to the stated facts; and
(iii) that the subject of the petition is present, or is reasonably believed to be present,
within the county where such petition is filed.
(3) The petition shall be accompanied by an affirmation or affidavit of a physician, who
shall not be the petitioner, and shall state either that:
(i) such physician has personally examined the person who is the subject of the petition
no more than ten days prior to the submission of the petition, he or she recommends
assisted outpatient treatment for the subject of the petition, and he or she is willing and
able to testify at the hearing on the petition; or
(ii) no more than ten days prior to the filing of the petition, such physician or his or her
designee has made appropriate attempts to elicit the cooperation of the subject of the
petition but has not been successful in persuading the subject to submit to an
examination, that such physician has reason to suspect that the subject of the petition
meets the criteria for assisted outpatient treatment, and that such physician is willing and
able to examine the subject of the petition and testify at the hearing on the petition.
(f) Service. The petitioner shall cause written notice of the petition to be given to the
subject of the petition and a copy thereof shall be given personally or by mail to the
persons listed in section 9.29 of this article, the mental hygiene legal service, the current
health care agent appointed by the subject of the petition, if any such agent is known to
the petitioner, the appropriate program coordinator, the appropriate director of
community services, if such director is not the petitioner.
(g) Right to counsel. The subject of the petition shall have the right to be represented by
the mental hygiene legal service, or other counsel at the expense of the subject of the
petition, at all stages of a proceeding commenced under this section.
(h) Hearing. (1) Upon receipt by the court of the petition submitted pursuant to
subdivision (e) of this section, the court shall fix the date for a hearing at a time not later
than three days from the date such petition is received by the court, excluding Saturdays,
Sundays and holidays. Adjournments shall be permitted only for good cause shown. In
granting adjournments, the court shall consider the need for further examination by a
physician or the potential need to provide assisted outpatient treatment expeditiously.
The court shall cause the subject of the petition, any other person receiving notice
pursuant to subdivision (f) of this section, the petitioner, the physician whose affirmation
or affidavit accompanied the petition, the appropriate director, and such other persons as
the court may determine to be advised of such date. Upon such date, or upon such other
date to which the proceeding may be adjourned, the court shall hear testimony and, if it
be deemed advisable and the subject of the petition is available, examine the subject
alleged to be in need of assisted outpatient treatment in or out of court. If the subject of
the petition does not appear at the hearing, and appropriate attempts to elicit the

attendance of the subject have failed, the court may conduct the hearing in such
subject's absence. If the hearing is conducted without the subject of the petition present,
the court shall set forth the factual basis for conducting the hearing without the presence
of the subject of the petition.
(2) The court shall not order assisted outpatient treatment unless an examining
physician, who has personally examined the subject of the petition within the time period
commencing ten days before the filing of the petition, testifies in person at the hearing.
(3) If the subject of the petition has refused to be examined by a physician, the court
may request the subject to consent to an examination by a physician appointed by the
court. If the subject of the petition does not consent and the court finds reasonable cause
to believe that the allegations in the petition are true, the court may order peace officers,
acting pursuant to their special duties, or police officers who are members of an
authorized police department or force, or of a sheriff's department to take the subject of
the petition into custody and transport him or her to a hospital for examination by a
physician. Retention of the subject of the petition under such order shall not exceed
twenty-four hours. The examination of the subject of the petition may be performed by
the physician whose affirmation or affidavit accompanied the petition pursuant to
paragraph three of subdivision (e) of this section, if such physician is privileged by such
hospital or otherwise authorized by such hospital to do so. If such examination is
performed by another physician of such hospital, the examining physician shall be
authorized to consult with the physician whose affirmation or affidavit accompanied the
petition regarding the issues of whether the allegations in the petition are true and
whether the subject meets the criteria for assisted outpatient treatment.
(4) A physician who testifies pursuant to paragraph two of this subdivision shall state the
facts which support the allegation that the subject meets each of the criteria for assisted
outpatient treatment, and the treatment is the least restrictive alternative, the
recommended assisted outpatient treatment, and the rationale for the recommended
assisted outpatient treatment. If the recommended assisted outpatient treatment
includes medication, such physician's testimony shall describe the types or classes of
medication which should be authorized, shall describe the beneficial and detrimental
physical and mental effects of such medication, and shall recommend whether such
medication should be self-administered or administered by authorized personnel.
(5) The subject of the petition shall be afforded an opportunity to present evidence, to
call witnesses on behalf of the subject, and to cross-examine adverse witnesses.
(i) (1) Written treatment plan. The court shall not order assisted outpatient treatment
unless an examining physician appointed by the appropriate director develops and
provides to the court a proposed written treatment plan. The written treatment plan shall
include case management services or assertive community treatment teams to provide
care coordination. The written treatment plan also shall include all categories of services,
as set forth in paragraph one of subdivision (a) of this section, which such physician
recommends that the subject of the petition should receive. If the written treatment plan
includes medication, it shall state whether such medication should be self-administered or
administered by authorized personnel, and shall specify type and dosage range of
medication most likely to provide maximum benefit for the subject. If the written
treatment plan includes alcohol or substance abuse counseling and treatment, such plan
may include a provision requiring relevant testing for either alcohol or illegal substances

provided the physician's clinical basis for recommending such plan provides sufficient
facts for the court to find (i) that such person has a history of alcohol or substance abuse
that is clinically related to the mental illness; and (ii) that such testing is necessary to
prevent a relapse or deterioration which would be likely to result in serious harm to the
person or others. In developing such a plan, the physician shall provide the following
persons with an opportunity to actively participate in the development of such plan: the
subject of the petition; the treating physician; and upon the request of the patient, an
individual significant to the patient including any relative, close friend or individual
otherwise concerned with the welfare of the subject. If the petitioner is a director, such
plan shall be provided to the court no later than the date of the hearing on the petition.
(2) The court shall not order assisted outpatient treatment unless a physician testifies to
explain the written proposed treatment plan. Such testimony shall state the categories of
assisted outpatient treatment recommended, the rationale for each such category, facts
which establish that such treatment is the least restrictive alternative, and, if the
recommended assisted outpatient treatment includes medication, the types or classes of
medication recommended, the beneficial and detrimental physical and mental effects of
such medication, and whether such medication should be self-administered or
administered by an authorized professional. If the petitioner is a director such testimony
shall be given at the hearing on the petition.
(j) Disposition. (1) If after hearing all relevant evidence, the court finds that the subject
of the petition does not meet the criteria for assisted outpatient treatment, the court shall
dismiss the petition.
(2) If after hearing all relevant evidence, the court finds by clear and convincing evidence
that the subject of the petition meets the criteria for assisted outpatient treatment, and
there is no appropriate and feasible less restrictive alternative, the court shall be
authorized to order the subject to receive assisted outpatient treatment for an initial
period not to exceed six months. In fashioning the order, the court shall specifically make
findings by clear and convincing evidence that the proposed treatment is the least
restrictive treatment appropriate and feasible for the subject. The order shall state the
categories of assisted outpatient treatment, as set forth in subdivision (a) of this section,
which the subject is to receive, and the court may not order treatment that has not been
recommended by the examining physician and included in the written treatment plan for
assisted outpatient treatment as required by subdivision (i) of this section.
(3) If after hearing all relevant evidence the court finds by clear and convincing evidence
that the subject of the petition meets the criteria for assisted outpatient treatment, and
the court has yet to be provided with a written proposed treatment plan and testimony
pursuant to subdivision (i) of this section, the court shall order the director of community
services to provide the court with such plan and testimony no later than the third day,
excluding Saturdays, Sundays and holidays, immediately following the date of such
order. Upon receiving such plan and testimony, the court may order assisted outpatient
treatment as provided in paragraph two of this subdivision.
(4) A court may order the patient to self-administer psychotropic drugs or accept the
administration of such drugs by authorized personnel as part of an assisted outpatient
treatment program. Such order may specify the type and dosage range of such
psychotropic drugs and such order shall be effective for the duration of such assisted
outpatient treatment.

(5) If the petitioner is the director of a hospital that operates an assisted outpatient
treatment program, the court order shall direct the hospital director to provide or arrange
for all categories of assisted outpatient treatment for the assisted outpatient throughout
the period of the order. For all other persons, the order shall require the director of
community services of the appropriate local governmental unit to provide or arrange for
all categories of assisted outpatient treatment for the assisted outpatient throughout the
period of the order.
(6) The director or his or her designee shall apply to the court for approval before
instituting a proposed material change in the assisted outpatient treatment order unless
such change is contemplated in the order. Non-material changes may be instituted by the
assisted outpatient treatment program without court approval. For the purposes of this
subdivision, a material change shall mean an addition or deletion of a category of
assisted outpatient treatment from the order of the court, or any deviation without the
patient's consent from the terms of an existing order relating to the administration of
psychotropic drugs. Any such application for approval shall be served upon those persons
required to be served with notice of a petition for an order authorizing assisted outpatient
treatment.
(k) Applications for additional periods of treatment. If the director determines that the
condition of such patient requires further assisted outpatient treatment, the director shall
apply prior to the expiration of the period of assisted outpatient treatment ordered by the
court for a second or subsequent order authorizing continued assisted outpatient
treatment for a period not to exceed one year from the date of the order. The procedures
for obtaining any order pursuant to this subdivision shall be in accordance with the
provisions of the foregoing subdivisions of this section, provided that the time period
included in subparagraphs (i) and (ii) of paragraph four of subdivision (c) of this section
shall not be applicable in determining the appropriateness of additional periods of
assisted outpatient treatment. Any court order requiring periodic blood tests or urinalysis
for the presence of alcohol or illegal drugs shall be subject to review after six months by
the physician who developed the written treatment plan or another physician designated
by the director, and such physician shall be authorized to terminate such blood tests or
urinalysis without further action by the court.
(l) Application for an order to stay, vacate or modify. In addition to any other right or
remedy available by law with respect to the order for assisted outpatient treatment, the
patient, mental hygiene legal service, or anyone acting on the patient's behalf may apply
on notice to the appropriate director and the original petitioner, to the court to stay,
vacate or modify the order.
(m) Appeals. Review of an order issued pursuant to this section shall be had in like
manner as specified in section 9.35 of this article.
(n) Failure to comply with assisted outpatient treatment. Where in the clinical judgment
of a physician, the patient has failed or has refused to comply with the treatment ordered
by the court, and in the physician's clinical judgment, efforts were made to solicit
compliance, and, in the clinical judgment of such physician, such patient may be in need
of involuntary admission to a hospital pursuant to section 9.27 of this article, or for whom
immediate observation, care and treatment may be necessary pursuant to section 9.39 or

9.40 of this article, such physician may request the director, the director's designee, or
persons designated pursuant to section 9.37 of this article, to direct the removal of such
patient to an appropriate hospital for an examination to determine if such person has a
mental illness for which hospitalization is necessary pursuant to section 9.27, 9.39 or
9.40 of this article. Furthermore, if such assisted outpatient refuses to take medications
as required by the court order, or he or she refuses to take, or fails a blood test,
urinalysis, or alcohol or drug test as required by the court order, such physician may
consider such refusal or failure when determining whether the assisted outpatient is in
need of an examination to determine whether he or she has a mental illness for which
hospitalization is necessary. Upon the request of such physician, the director, the
director's designee, or persons designated pursuant to section 9.37 of this article, may
direct peace officers, when acting pursuant to their special duties, or police officers who
are members of an authorized police department or force or of a sheriff's department to
take into custody and transport any such person to the hospital operating the assisted
outpatient treatment program or to any hospital authorized by the director of community
services to receive such persons. Such law enforcement officials shall carry out such
directive. Upon the request of such physician, the director, the director's designee, or
person designated pursuant to section 9.37 of this article, an ambulance service, as
defined by subdivision two of section three thousand one of the public health law, or an
approved mobile crisis outreach team as defined in section 9.58 of this article shall be
authorized to take into custody and transport any such person to the hospital operating
the assisted outpatient treatment program, or to any other hospital authorized by the
director of community services to receive such persons. Such person may be retained for
observation, care and treatment and further examination in the hospital for up to
seventy-two hours to permit a physician to determine whether such person has a mental
illness and is in need of involuntary care and treatment in a hospital pursuant to the
provisions of this article. Any continued involuntary retention in such hospital beyond the
initial seventy-two hour period shall be in accordance with the provisions of this article
relating to the involuntary admission and retention of a person. If at any time during the
seventy-two hour period the person is determined not to meet the involuntary admission
and retention provisions of this article, and does not agree to stay in the hospital as a
voluntary or informal patient, he or she must be released. Failure to comply with an order
of assisted outpatient treatment shall not be grounds for involuntary civil commitment or
a finding of contempt of court.
(o) Effect of determination that a person is in need of assisted outpatient treatment. The
determination by a court that a patient is in need of assisted outpatient treatment under
this section shall not be construed as or deemed to be a determination that such patient
is incapacitated pursuant to article eighty-one of this chapter. [FN3]
(p) False petition. A person making a false statement or providing false information or
false testimony in a petition or hearing under this section is subject to criminal
prosecution pursuant to article one hundred seventy-five [FN4] or article two hundred ten
of the penal law. [FN5]
(q) Exception. Nothing in this section shall be construed to affect the ability of the
director of a hospital to receive, admit, or retain patients who otherwise meet the
provisions of this article regarding receipt, retention or admission.
(r) Educational materials. The office of mental health, in consultation with the office of
court administration, shall prepare educational and training materials on the use of this
section, which shall be made available to local governmental units as defined in article

forty-one of this chapter, providers of services, judges, court personnel, law enforcement
officials and the general public.

Appendix B

Appendix C

OMH”s Final Report on “Kendra’s Law”
Is Propaganda, Not Science
OMH’s Final Report appears on the surface to be scientific and credible, and it surely
shows that some benefits flow from enhanced services. But it has no scientific validity
and shows no benefits from compulsion. It is really propaganda with charts.
The report contains almost no negative findings. Any objective evaluation would have
offered some criticism.
The report claims many positive effects from “Kendra’s Law,” but it completely fails to
show what produced them – better access to services or compulsion. The law as now
written directs both to people under court orders. The report looks only at their combined
effect, so it is impossible to tell what is accomplished by either. The most relevant
scientific study – conducted under a similar pilot law at Bellevue Hospital in the 1990s –
examined this question by using a control group. It compared two matched groups of
people, both with enhanced services but only one with court orders. It found that better
access to services reduced hospitalizations, but court orders added nothing in terms of
people’s staying with treatment, symptoms, functioning, frequency of hospitalization,
arrest, quality of life, etc.1 The Bellevue study suggests that all the benefits claimed by
OMH’s report may come from enhanced services, and none from compulsion. No one
would object to providing service priority to a high-need group, but many object to
compulsion under the present law. OMH’s report ignores this vital distinction and
provides no support for the effectiveness of compulsion.
“Kendra’s Law” has been hyped as a response to individuals who commit random acts of
violence. OMH’s report soft-peddles the fact that it is actually used mostly on people
without a history of hurting others, who have been hospitalized more than once. It buries
in a table the fact that only 15% of those under court orders have done any physical harm
to another in the period prior to their orders – so 85% have not.
The report soft-peddles the loss of control over their lives that people experience under
court orders. They get not only guaranteed access to services, but also a case manager
who reports to bureaucrats on their “compliance,” plus mandates to “comply” with
various services. In most cases these include specific medications, many of which have
serious side effects; and often therapy at particular clinics (and so with particular
therapists & therapy group members), programs that fill up their days, tests of blood or
urine, and/or particular housing (which may determine roommates and often has strict
rules). Here are some of the report’s figures, which it presents as showing “participation,”
thus glossing over that “participation” is mandatory and involves a great loss of freedom:
88% medication management
75% individual & group therapy
22% day programs

40% substance abuse programs
37% blood or urine testing
31% housing or housing support services

The report is based almost entirely on opinions of case managers comparing their clients’
functioning prior to and during court orders. This is a very weak basis for conclusions.
Many of these “before & after” measurements are highly subjective. They include
“effectively handle conflict,” “manage assertiveness,” “maintain support
network” and “abuse alcohol.” Even the measures of medication “compliance”
are subjective and based on hearsay – case managers are seldom present to see
whether clients take medications “as prescribed.” And Very often case managers compare clients’ functioning before they worked with
them to their functioning as their own clients. Of course the case managers are
inclined to see their own efforts as effective. This is human nature. And Case managers work for programs with state funding. It has been no secret that
the state mental health bureaucracy from Governor Pataki down is bent on
trumpeting a “success.” Case managers know everyone up the line wants to see
their clients “improve” under court orders. And People subjected to court orders are under enormous pressure to tell case
managers and others that they are accepting treatment as directed. Many are
vulnerable people. They live under threat of seizure by police and confinement for
at least three days in locked hospital wards if they fail to “comply.” Can we
assume that all will faithfully report how often they take their pills, for example?
The report touches none of the other obvious hard questions, such as –
What are the treatment costs in lost trust and candor from clients who know that
those who treat them will turn them in if they do not “comply”?
Is it really necessary to take away people’s freedom for the bureaucracy to
become more responsive and organized?
How many people have gone underground or moved to avoid orders? How many
have avoided a mental health evaluation for fear of a second hospitalization that
would make them “eligible” for a court order? All of these things happen.
How many people could get actual treatment and services for the millions spent
on the mechanics of compulsion?
Why are 63% of the people under court orders Black or Hispanic, compared to
31% of our state’s people? What is wrong with our mental health system that
leads to Black people being almost 5 times as likely as White people to lose their
freedom of choice, and Hispanic people 2.5 times as likely to do so?
1

Henry Steadman, Kostas Gounis, Deborah Dennis, et al., Assessing the New York City Involuntary
Outpatient Commitment Pilot Program, 52 Psychiatric Services 330 (2001).