Twenty-three years ago, then-state Attorney General Eliot Spitzer and I sat in a Buffalo conference room with the grieving family of Kendra Webdale. We were there to explain legislation I had drafted as a member of Spitzer’s staff in response to the fatal subway pushing a few weeks earlier of their daughter and sister by a man with untreated schizophrenia, and ask for their blessing to call the proposal “Kendra’s Law.”
As I sat face-to-face with the Webdales’ still-raw anguish, I could not promise that our proposal — establishing “assisted outpatient treatment” (AOT) programs across New York State to identify individuals with severe mental illness who struggle to adhere to prescribed treatment, and provide them with comprehensive community-based services and intensive monitoring under court order — would prevent any future family from enduring a loss as horrific and senseless as theirs. But I did tell them Kendra’s Law would give the public mental health system a powerful preventative tool, leaving no excuse for a failure to monitor the mental condition and behavior of a high-risk patient.
The memory of that meeting evokes frustration in the wake of last week’s depressingly similar killing of Michelle Go. Thanks to Kendra’s Law, AOT is today a fixture of the mental health system in New York City and statewide. Research has proven its effectiveness in improving quality of life and reducing hospitalization, violence and arrest for its target population. But incomprehensibly, it appears that the city mental health system did not secure an AOT court order for Simon Martial, the mentally ill perpetrator of the latest subway carnage, despite a history of repeat hospitalization and violence.
There are presently about 1,500 individuals under AOT in New York City, with about 12,000 served since the program’s inception in 1999. AOT has surely prevented many tragedies over 23 years. And yet preventable tragedies involving individuals not on AOT keep mounting, while lost souls in florid psychosis remain a heartbreakingly routine spectacle across the city.
How to explain this disconnect between undeniably improved outcomes for those who receive services under Kendra’s Law, and the hard truth that untreated severe mental illness remains a major problem in New York? There is good reason to wonder whether Kendra’s Law is being utilized as frequently as it should be, but we must also recognize the limits of what can be accomplished through this one program. A top-to-bottom re-think of the entire mental health system’s priorities is overdue.
Mayor de Blasio’s ThriveNYC initiative was supposed to be exactly that. But ThriveNYC was a Christmas tree collapsing under the weight of too many ornaments. It included a staggering 54 programs, with only a handful focused on the needs of people with severe mental illness, i.e. the types causing psychosis and delusion, such as schizophrenia and severe bipolar disorder.
ThriveNYC has since been pared down to 20 programs and re-branded as the Office of Community Mental Health (OCMH). Some of the programs still standing, like Mobile Crisis Teams and Support and Connection Centers, are actually useful to people with severe mental illness. But even now, the agency proudly declares its mission as “promot[ing] mental health for all New Yorkers,” seriously overshooting the target. In attempting to answer persistent criticism that OCMH has little to show for its $225 million annual budget, the agency director recently ticked off the agency’s notable accomplishments to date. The two items she deemed worthy of leading her list were telling: a reduction in anxiety and depression among senior citizens, and a successful initiative to help crime victims feel safer.
These are not trivial matters undeserving of the city’s attention. But the message seems to be that everyone’s mental health issues are interconnected; that if we “promote mental health for all New Yorkers,” the scary guy on the bus will be lifted by the rising tide. That’s nonsense. We should not kid ourselves that these programs will have any impact on the mental health crisis on grotesque display in the city’s public spaces.
There are fundamental differences between the 4% of the population with severe diagnoses and the rest of us who experience various mental health challenges over the course of our lives. A big one is that without treatment, people with severe mental illness lose their connection to reality. Many are truly unaware that anything in their life is amiss. A neurological deficit known as anosognosia, estimated to afflict half of individuals with schizophrenia and 40% with bipolar disorder, prevents them from recognizing their illness and need for treatment.
That is why any strategy to tackle untreated severe mental illness must unapologetically recognize the need to provide involuntary treatment to individuals in crisis, even those who are not yet violent or suicidal. Admittedly, it’s not an uplifting or uncontroversial message, which may explain why you will find no mention of it in OCMH’s program slate.
A phalanx of New York interest groups oppose any expansion of involuntary treatment, viewing it as a violation of core civil liberties. These activists don’t see the irony of their position: Abandoning the severely mentally ill to lead lives of unremitting torment, or freeze to death, or rot in a prison cell, is the ultimate denial of their civil rights.
We shouldn’t allow this thinking to continue to dictate policy. The entrance of Eric Adams as New York’s mayor presents an opportunity to chart a new course. Having made common sense a central feature of his political brand, Mayor Adams may be the very leader this challenge requires.
Here’s a roadmap for refusing to accept the inevitability of untreated severe mental illness in New York City:
Increase inpatient psych beds. By expert consensus, the city needs about 4,400 psychiatric hospital beds to meet true demand. As of 2018, there were fewer than 2,800 and a downward trend resulting from a series of private hospital closings. The city has been struggling to pick up the slack in its own hospitals, but it clearly can’t meet the full need alone.
A great way to incentivize the creation of new private beds would be for New York State to receive a waiver from the “IMD Exclusion,” a federal law that generally bars the use of Medicaid funds to pay for inpatient psychiatric care. The federal government recently began granting waivers that allow Medicaid reimbursement for hospital stays of up to 60 days. New York has not applied for a waiver. Adams should publicly call on Gov. Hochul to do so, offer the city’s help in preparing the waiver application, and make the matter a top priority for lobbying Albany.
Broadly interpret civil commitment laws. New York has one of the nation’s worst laws on inpatient civil commitment. All states have some version of the “danger to self or others” standard as the basis for involuntarily hospitalizing an individual who cannot recognize their own urgent need for care. But most provide language to make clear that a person is “dangerous to self” if mental illness prevents them from meeting their basic survival needs. About half go further, recognizing “danger to self” in the inability to protect one’s own brain from deterioration resulting from non-treatment. New York’s law does neither, and the prevailing interpretation is that a person is only “dangerous to self” if suicidal or engaging in outrageously reckless behavior like walking into traffic.
The mayor should press Albany to bring these laws up to national standards. But while he’s waiting for action, Adams should recognize that the current legal standards don’t actually preclude a broader interpretation. The standard for longer commitments vaguely requires proof that hospital care is “essential to [the] person’s welfare.” The standard for shorter commitments mentions the risk of suicide or bodily harm but also adds a catch-all for “other conduct demonstrating that the person is dangerous to [self].”
The Adams administration should issue directives to police, all city personnel conducting field evaluations of individuals in crisis, and doctors in city-operated hospitals, that these standards should be reasonably interpreted to encompass as dangerous-to-self any individual whose untreated mental illness prevents them from meeting basic survival needs, i.e., proper food, clothing, shelter and medical care.
Would the city face a court challenge from the Mental Hygiene Legal Service, who represent patients in civil commitments? Of course. It would be a fight well worth having, and the city would prevail.
Review protocols for AOT evaluation. The city’s AOT program has proven its mettle as a difference-maker in the most challenging cases. But Simon Martial is just the latest in a line of cases leaving us to wonder: How did this person not qualify for AOT? The law sets out a set of specific criteria as to who is eligible based on history of treatment non-adherence and current condition. The goal should be nothing less than to have every single city resident who meets those criteria on a given day under an AOT court order.
It does not appear that the Department of Health and Mental Hygiene is hitting that benchmark. There should be a thorough review of the processes in place to identify individuals who meet AOT criteria. Because criteria are limited to those caught in the “revolving door,” this shouldn’t be hard. Is every person reviewed for AOT eligibility upon discharge from a psychiatric hospital stay? How about those under psychiatric treatment coming out of jail? Is every AOT participant re-evaluated for renewal eligibility upon reaching the end of their court-ordered period? These and other questions should be addressed in a public report.
If Mayor Adams will seize this moment to make severity of need the primary driver of how mental health treatment resources are allocated in New York City, Michelle Go will have one more thing in common with Kendra Webdale: She will not have died in vain.
Stettin, a former assistant attorney general for the state of New York, is policy director at the Treatment Advocacy Center.
