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July 24, 2019 by Bob Nikkel, MSW

Responding to “The Case Against AOT”

Next Steps for Change

Robert Whitaker and Michael Simonson produced an essential review and critique of forced outpatient interventions in their July 14 article, “Twenty Years After Kendra’s Law:  The Case Against AOT.”

Bob has sometimes been criticized for not advocating more on the issues he raises.  The way I see it, that is not his job as an investigative medical journalist.  That is the job of his readers.

My interest lies in analyzing the “so what next?” steps that should be considered.  For better or worse, my perspective is that of a person who has worked at every level of the mental health (and addictions) systems in the U.S.  And it has evolved especially from my relatively long tenure as a state mental health commissioner.

I tend to sort out the problems that have been identified and then suggest options to consider.  These include policy, program, training, oversight, regulatory, finance, legislative initiatives, and finally, the advocacy needed to enact changes that are needed.

My overall reaction to the issues raised in “The Case Against AOT” starts with this – the states abuse their own regulations by not following them.

This is not to say I think AOT (or more accurately “Involuntary Outpatient Commitment” (IOC)) should even be a legal option.  The 3 states that have refused to enact it into legislation are to be commended and supported in maintaining this position.

Advocates in the other 47 states have an incredibly challenging proposition to confront the elimination of IOC.  It will be a time-consuming, intensely demanding political endeavor.  It would be extremely important to learn from advocates in the few states that have blocked outpatient commitment laws from ever being enacted.

Colleagues like Tom Behrendt, Kathy Flaherty and others in Connecticut who have so far successfully fought the introduction of outpatient forced treatment bills have an incredible amount of history and information that would be best for them to share directly and in detail.  But my summary of it is as follows:  They were able to organize a powerful grassroots movement to speak to both the state mental health office and legislators when bills were introduced to start involuntary outpatient commitment.

They monitored hearings.  They helped draft testimony and made sure that it was well-organized with cogent arguments concerning all of the negative effects of passing such a law.  They worked closely with the state mental health office to get them to change their initial support for the legislation.

They involved key and well-known advocates, even from out-of-state, if they could be available.  They prepared alternate language to be inserted as proposed amendments to the bills they were opposing.  For example, one of their proposals was to develop a program to train clients about advance directives and to create “peer engagement specialists.”

Perhaps Bob and Michael have given us one of the most powerful tools in future efforts of all kinds.  It provides the most reliable and comprehensive guide to what research tells us about the ineffectiveness and dangers of involuntary outpatient commitment.  We haven’t had this before.

There will be many who will direct their efforts toward repealing IOC statutes in their states – an extremely challenging and uphill battle.  Their arguments will be strengthened immensely by the findings in this report.  But everyone who works on reforming the abuses of IOC will find this information invaluable too.

In curtailing the use of existing practices, I would like to point out that Saul Alinsky’s Rules for Radicals may apply here – make the system follow its own rules.  As Bob and Michael make clear in telling of  the tragedy of Andrew Rich, the basic standards for extending outpatient forced treatment can be and were disregarded. The only reason given for extending Andrew’s commitment was that he disagreed with his psychiatrist that he was “mentally ill,” which was not a criteria that, under the law, could be used to justify an extension.

What follows from here are suggestions to stimulate thinking about what kinds of interventions can be considered.  They are far from comprehensive and some are far more likely to be enacted soon rather than later.  Most will require not only advocacy but additional funding.  If it’s going to continue at all, it must be recognized that Involuntary Outpatient Commitment cannot be respectfully, much less anywhere near effectively, used “on the cheap.”

Each problem in how IOC is currently practiced is listed below with examples of what can be done to counteract the harmful practices.

  1. The courts are inconsistent in following the legal standards for outpatient civil commitment.
  2. One proposition to consider is that courts and so-called psychiatric experts must be intensely monitored. One step would be to engage each state’s Protection and Advocacy agency to try to get them to prioritize this area of human rights abuse. My experience is that different state disability organizations will have varying degrees of interest in the issues.How to do this:Advocates should begin taking an active role in attending hearings. They must pressure their court systems to ensure that competent defense attorneys represent the expressed interests of the person for whom the hearing is being held. Simply having legal representation does not meet the need—it must be skilled, independent, knowledgeable and assertive.
    1. The use of psychiatric drugs forced on people subjected to Involuntary Outpatient Commitment orders is largely out of control.

    Like the practice of prescribing psychiatric medications in general, these medication orders are mostly inconsistent with unbiased research on outcomes and oblivious to the destructive and health damaging effects. They are especially blind to the dangerous effects of polypharmacy.

    How to counter this:

    To counteract these abuses, each state’s process should require the court to track what each person is being prescribed, at what dosage, for how long and by whom. The courts should then identify patterns and prescribers out of the bounds of standards of unbiased research-based clinical practice. The courts should be required to identify true experts in psychiatric drug prescription practices. This process would identify those persons who are being prescribed more than one psychiatric drug and those who are on even moderate, much less high dosages. This information should be made available at each court hearing for recommitment.

    1. Individuals under Involuntary Outpatient Commitment orders are virtually alone during the time between commitment and recommitment hearings.

    How to counter this:

    A peer rights advocate should be offered and made available to each person who desires it. These peer advocates would be independent of the courts and mental health treatment providers. They would spend time with each person on a regular basis to provide support and gather information about how the interventions are working or not. They would watch for infringement of rights, and assist the person in expressing her or his desires to the court. They would also assist the person in moving the commitment process toward self-directed decision-making.

    1. Involuntary Outpatient Treatment practices are based on a chronicity model which rewards only obedience to forced treatment orders. Destructive abuses occur when there is no attention to the process of moving beyond the outpatient commitment period and into a recovery mindset.

    What to do:

    While it may appear to be an oxymoron, the entire commitment system should be grounded in and feature the likelihood of recovery rather than chronicity. All of the forms of peer support can make this part of the court monitoring process, whether or not an individual judge or the so-called expert witnesses agree.

    1. The psychiatric profession is mostly uneducated when it comes to the mid- to long-term effects and outcomes for medication. There is virtually no attention given to providing true informed consent – including what can be expected when withdrawing from the drugs.

    What to do:

    A court could be required to monitor not only the prescribing patterns noted above, but behind this, the knowledge base of prescribers. Are they taking continuing education courses and receiving CMEs that demonstrate competency and knowledge from courses that are far different from the pro-medication biases of most existing CME resources? Resources like the Mad in America Continuing Education project should be provided with funds to market and purchase the relatively expensive CME applications for these kinds of courses.

    1. Courts and mental health administrators are largely unaware of the relative ineffectiveness of psychiatric drugs, what dynamics like dopamine super sensitivity are all about, and which withdrawal approaches will most likely lead to improvement in life satisfaction and safety rather than what is interpreted as relapse.

    What to do:

    Require court personnel and mental health administrators to attend educational sessions and seminars that provide unbiased information similar to what prescribers are required to take in continuing education for professional credits.

    1. Like the courts, prescribers and mental health administrators, county and state officials and legislators are unaware of the risks, the lack of effectiveness and the violation of rights that currently accompany Involuntary Outpatient Commitment. What they hear and understand comes almost entirely from NAMI and pharmaceutical lobbyists.

    What to do:

    The steps outlined here can be achieved only by advocacy at the state and local levels. The purpose of making legislators aware of the problems is to get them to build the solutions into policies, administrative rules and negotiated agreements. Many will require legislative interventions at some point.  Advocates must establish working relationships everywhere they can. Often, certain state legislators will take more interest than others in mental health issues—sometimes for better, sometimes for worse. It is essential to know who’s who and which legislators have more influence than others, such as chairing human services committees. Likewise, state offices of mental health vary greatly in their receptivity to these kinds of human rights issues. Participating on planning and advocacy councils is often critical. Other times, less formal approaches will work better. State officers can be highly defensive, so going at it carefully and as respectfully as possible is key. Confrontation is needed sometimes but generally to be avoided when a softer approach can be used over a period of time.

    1. Advocates have yet to establish the increased costs, find ways to quantify them with credible fiscal analyses or learn how to manage the costs over time.

    What to do:

    As noted above, most if not all of these suggestions will require additional resources. In recognition of this, persons seeking change must be able to conduct credible fiscal analyses.  Budget and fiscal staff from local and state agencies can be asked to provide coaching on how to do this. Some will be better at numbers than words, so identifying who can do which of these types of tasks is something to be worked out at every local and state advocacy level. One approach to minimizing fiscal impacts is to determine whether a pilot could be used to demonstrate effectiveness at a lesser cost than full blown changes.

    Conclusion

    Clearly, most of these suggestions are incremental in nature. Some would have greater impacts than others. I would suggest a two-pronged approach where effort is devoted to both repeal of IOC laws and these admittedly reform-oriented propositions. But it seems essential now to begin taking advantage of the incredible information assembled by Bob and Michael in their analysis of Kendra’s Law. It’s really up to us now.


bnikkel_miaceRobert Nikkel, MSW, is a Clinical Assistant Professor in the Public Psychiatry Training Program at Oregon Health and Science University. He was the State of Oregon’s commissioner for both mental health and addictions from 2003-2008. He is the director of the Mad in America Continuing Education project and a member of the Board of Directors of the Foundation for Excellence in Mental Health Care.

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