Commentary
Outpatient Commitment Reexamined: A Third Way Howard H. Goldman, M.D., Ph.D.
O
utpatient commitment remains a controversial intervention and policy. The two Open Forum essays in this issue provide more evidence concerning outpatient commitment and do not resolve the controversy (1,2). I believe that the controversy over outpatient commitment obtains in large measure because of conflation of objectives, criteria, and specifics of the interventions and policies—and the fit between these elements. Outpatient commitment is not a universal solution to the many problems of getting appropriate care to those who need it. There is a “third way” between the proponents and opponents of outpatient commitment that accomplishes its goals without adding new coercive measures. Others have proposed similar approaches (3,4) but not in the pages of Psychiatric Services.
Conflation of and confusion between objectives and criteria For some, the purpose of outpatient commitment is to protect the individual from imminent harm through suicide or self-neglect and to protect the public from acts of violence perpetrated by the individual who has a mental disorder. The argument is that the restrictions of liberty associated with court-ordered outpatient commitment are justified by the threat of harm to self or others and are less restrictive than inpatient detention intended to accomplish the same goals. The true measure of success is that harm is averted. Common proxies for this outcome are
Dr. Goldman, who is editor of Psychiatric Services, is with the Department of Psychiatry, University of Maryland School of Medicine, Baltimore (e-mail: hh.goldman@ verizon.net). 816
fewer inpatient admissions during the period of outpatient commitment or reductions in or avoidance of arrests. For others, the objective of outpatient commitment is purely benevolent, in that it is designed to ensure treatment for individuals who need it but who do not understand their illness and the risks of refusing treatment because of their impaired decisional capacity. There is a logical link between the two objectives of benevolence and societal protection: if the intended beneficiaries of outpatient commitment receive services, they will have better overall outcomes and will be less likely to cause harm to themselves or others. One significant problem with current policies about outpatient commitment is that the criteria used to determine whether to use outpatient commitment are usually designed to address the first objective (harm) but not the second (decisional capacity). The criteria for outpatient commitment are generally framed in terms of risk of harm to self or others. It is implied (but not clearly specified) that the level of risk is less than the risk that might necessitate involuntary hospitalization or its continuation. These criteria apply whether the objective is to prevent harm or to ensure treatment. Little, if any, attention is paid to decisional capacity. Outpatient commitment policies and procedures vary from jurisdiction to jurisdiction, but none of the approaches on their own are well suited to achieving the stated objectives of protection or treatment. There is a risk that these measures are perceived as coercive and accomplish neither objective. The problem with all of them is that outpatient commitment is not a fail-safe intervention that prevents harm to self or others—at least not in the way that inpatient commitment is. If someone is truly danPSYCHIATRIC SERVICES
gerous, how does a requirement to attend an outpatient service protect the individual or the public from harm? The outpatient commitment order, per se, can compel attendance at an outpatient service setting, but in most instances, it cannot compel a specific treatment, such as taking medication. In this way, neither objective of outpatient commitment is well served. At best outpatient commitment brings an individual into contact with professionals who can assess clinical status and return the individual to the hospital if appropriate. Only an additional court order, however, can compel an individual to receive specific treatment against his or her will, whether as an outpatient or an inpatient, except in acute emergencies. With outpatient commitment, alone, the individual receives neither effective protection against harm nor the intended benefits of treatment. And the public is not protected. Whereas the criterion of dangerousness is appropriate if we are to deprive a person of his or her liberty by compelling inpatient care, it does not seem appropriate as the criterion for outpatient care, which is usually based on voluntary participation in treatment. A different (perhaps additional) criterion is needed for compelling outpatient care, and I believe that the appropriate criterion is related to judgmental capacity— the ability to make an informed decision about the need for treatment. We already have tools to accomplish this end in some circumstances, such as guardianship, but these procedures can be difficult to put in place in a timely manner.
A third way: meeting the same goals without new coercive measures I believe that there is a “third-way” solution to the controversy surrounding
' ps.psychiatryonline.org ' June 2014 Vol. 65 No. 6
outpatient commitment—one that makes better use of existing tools without adding new coercive measures. By focusing on decisional capacity, the third way ensures that people who are in need of care receive it before they require hospitalization because of the threat of harm or self-neglect, and it provides better monitoring of care after a hospital stay by means of conditional release. Modified guardianship before hospitalization An alternative approach to outpatient commitment might take the following form. It would be similar to a competency hearing but broader in order to cover civil actions. When an individual clearly needs treatment recommended by one or more qualified clinicians and the individual is unable to appreciate the risks and benefits of treatment, a judicial decision would be rendered authorizing a specific involuntary treatment, such as the use of depot antipsychotic medication or participation in assertive community treatment with home visits. The hearings for such an approach to outpatient treatment orders must pay particular attention to issues of procedural justice with adequate legal representation. An individual ombudsman would be appointed to monitor the court-ordered treatment. In this way, the benevolence intended by some proponents of outpatient commitment might be realized because of the focus on decisional capacity rather than dangerousness. Because the emphasis is on the ability to give informed consent to treatment rather than on dangerousness, this approach avoids coercing individuals with adequate decisional capacity. It avoids forcing such individuals into outpatient care that is neither wanted nor likely to accomplish its intended objective of protection against harm. (This approach also obviates the need to make a judicial decision for patients who lack decisional capacity but who assent to treatments recommended by their doctors, even when they cannot make truly informed decisions. One rarely hears of physicians seeking to commit patients who agree to treatment,
PSYCHIATRIC SERVICES
even if they have anosognosia and lack understanding of their condition.) The proposed third way is more like a form of guardianship, but it does not deprive individuals of their rights to make decisions in other spheres of their lives where they might retain decisional capacity. With this approach to outpatient commitment, it might truly become assisted outpatient treatment and not a euphemism for coerced services that are ordered for individuals who have the capacity to decide whether they need treatment. In his 1999 report on mental health, the Surgeon General concluded that “Coercion should not be a substitute for effective care that is sought voluntarily.” He was encouraging the implementation of more effective treatments in the community as a way of avoiding coercive measures. Most studies of the effects of outpatient commitment have compared intensive treatment with and without a commitment order rather than comparing usual care with and without a commitment order (1,2). This evidence has led some to conclude that the merit of outpatient commitment is to commit the service system to the patient as much as the other way around. An outpatient commitment order compels the service system to provide appropriate services to individuals in need who are not able to decide for themselves about the benefits and risks of specific treatments. Conditional release after hospitalization For decades inpatients have been released from hospitalizations on conditional release. Patients released conditionally are expected to attend outpatient services, and a clinician is permitted to order them to be readmitted to a hospital if they are judged to be deteriorating and at risk of harm to themselves or others (5). Individuals on conditional release are presumed to be receiving outpatient treatment, or their status is known to police or other enforcement agents who can bring them to the discharging hospital for readmission. Conditional release often begins as a trial visit to a destination
' ps.psychiatryonline.org ' June 2014 Vol. 65 No. 6
outside the hospital, which then continues as some form of aftercare, permitting the patient with a history of threat of harm to be discharged earlier from an inpatient commitment than would otherwise be expected. Conditional release does not compel a specific treatment; however, the individual is expected to attend some type of aftercare services. It is intended to facilitate a quick readmission in the event of clinical deterioration or threat of harm. Criteria for inpatient admission are not changed by conditional release, and a patient who is returned to the hospital for reevaluation need not be readmitted, depending on the judgment of the assessing physician. Conditional release is a policy that has worked to accomplish many of the same objectives of outpatient commitment without creating an additional coercive mechanism. Continued use of conditional release in conjunction with an alternative approach to outpatient treatment orders that is focused on decisional capacity (3,4) and the need for specific treatments would allow us to proceed without unnecessary new coercive measures. Acknowledgments and disclosures The author thanks Robert Bernstein, Ph.D., Michael F. Hogan, Ph.D., Joseph P. Morrissey, Ph.D., Jeffrey W. Swanson, Ph.D., and Marvin S. Swartz, M.D., for helpful comments. The views expressed are those of the author and do not necessarily represent the position of any organization with which he is affiliated. The author reports no competing interests.
References 1. Swanson JW, Swartz MS: Why the evidence for outpatient commitment is good enough. Psychiatric Services 65:808–811, 2014 2. Morrissey JP, Desmarais SL, Domino ME: Outpatient commitment and its alternatives: questions yet to be answered. Psychiatric Services 65:812–815, 2014 3. Geller JL, McDermeit M, Grudzinskas AJ, Jr, et al: A competency-based approach to courtordered outpatient treatment. New Directions for Mental Health Services 75:81–95, 1997 4. Dawson J, Szmukler G: Fusion of mental health and incapacity legislation. British Journal of Psychiatry 188:504–509, 2006 5. McCafferty G, Dooley J: Involuntary outpatient commitment: an update. Mental and Physical Disability Law Reporter 14:277–287, 1990
817
Outpatient Commitment Reexamined: A Third Way Howard H. Goldman, M.D., Ph.D.
O
utpatient commitment remains a controversial intervention and policy. The two Open Forum essays in this issue provide more evidence concerning outpatient commitment and do not resolve the controversy (1,2). I believe that the controversy over outpatient commitment obtains in large measure because of conflation of objectives, criteria, and specifics of the interventions and policies—and the fit between these elements. Outpatient commitment is not a universal solution to the many problems of getting appropriate care to those who need it. There is a “third way” between the proponents and opponents of outpatient commitment that accomplishes its goals without adding new coercive measures. Others have proposed similar approaches (3,4) but not in the pages of Psychiatric Services.
Conflation of and confusion between objectives and criteria For some, the purpose of outpatient commitment is to protect the individual from imminent harm through suicide or self-neglect and to protect the public from acts of violence perpetrated by the individual who has a mental disorder. The argument is that the restrictions of liberty associated with court-ordered outpatient commitment are justified by the threat of harm to self or others and are less restrictive than inpatient detention intended to accomplish the same goals. The true measure of success is that harm is averted. Common proxies for this outcome are
Dr. Goldman, who is editor of Psychiatric Services, is with the Department of Psychiatry, University of Maryland School of Medicine, Baltimore (e-mail: hh.goldman@ verizon.net). 816
fewer inpatient admissions during the period of outpatient commitment or reductions in or avoidance of arrests. For others, the objective of outpatient commitment is purely benevolent, in that it is designed to ensure treatment for individuals who need it but who do not understand their illness and the risks of refusing treatment because of their impaired decisional capacity. There is a logical link between the two objectives of benevolence and societal protection: if the intended beneficiaries of outpatient commitment receive services, they will have better overall outcomes and will be less likely to cause harm to themselves or others. One significant problem with current policies about outpatient commitment is that the criteria used to determine whether to use outpatient commitment are usually designed to address the first objective (harm) but not the second (decisional capacity). The criteria for outpatient commitment are generally framed in terms of risk of harm to self or others. It is implied (but not clearly specified) that the level of risk is less than the risk that might necessitate involuntary hospitalization or its continuation. These criteria apply whether the objective is to prevent harm or to ensure treatment. Little, if any, attention is paid to decisional capacity. Outpatient commitment policies and procedures vary from jurisdiction to jurisdiction, but none of the approaches on their own are well suited to achieving the stated objectives of protection or treatment. There is a risk that these measures are perceived as coercive and accomplish neither objective. The problem with all of them is that outpatient commitment is not a fail-safe intervention that prevents harm to self or others—at least not in the way that inpatient commitment is. If someone is truly danPSYCHIATRIC SERVICES
gerous, how does a requirement to attend an outpatient service protect the individual or the public from harm? The outpatient commitment order, per se, can compel attendance at an outpatient service setting, but in most instances, it cannot compel a specific treatment, such as taking medication. In this way, neither objective of outpatient commitment is well served. At best outpatient commitment brings an individual into contact with professionals who can assess clinical status and return the individual to the hospital if appropriate. Only an additional court order, however, can compel an individual to receive specific treatment against his or her will, whether as an outpatient or an inpatient, except in acute emergencies. With outpatient commitment, alone, the individual receives neither effective protection against harm nor the intended benefits of treatment. And the public is not protected. Whereas the criterion of dangerousness is appropriate if we are to deprive a person of his or her liberty by compelling inpatient care, it does not seem appropriate as the criterion for outpatient care, which is usually based on voluntary participation in treatment. A different (perhaps additional) criterion is needed for compelling outpatient care, and I believe that the appropriate criterion is related to judgmental capacity— the ability to make an informed decision about the need for treatment. We already have tools to accomplish this end in some circumstances, such as guardianship, but these procedures can be difficult to put in place in a timely manner.
A third way: meeting the same goals without new coercive measures I believe that there is a “third-way” solution to the controversy surrounding
' ps.psychiatryonline.org ' June 2014 Vol. 65 No. 6
outpatient commitment—one that makes better use of existing tools without adding new coercive measures. By focusing on decisional capacity, the third way ensures that people who are in need of care receive it before they require hospitalization because of the threat of harm or self-neglect, and it provides better monitoring of care after a hospital stay by means of conditional release. Modified guardianship before hospitalization An alternative approach to outpatient commitment might take the following form. It would be similar to a competency hearing but broader in order to cover civil actions. When an individual clearly needs treatment recommended by one or more qualified clinicians and the individual is unable to appreciate the risks and benefits of treatment, a judicial decision would be rendered authorizing a specific involuntary treatment, such as the use of depot antipsychotic medication or participation in assertive community treatment with home visits. The hearings for such an approach to outpatient treatment orders must pay particular attention to issues of procedural justice with adequate legal representation. An individual ombudsman would be appointed to monitor the court-ordered treatment. In this way, the benevolence intended by some proponents of outpatient commitment might be realized because of the focus on decisional capacity rather than dangerousness. Because the emphasis is on the ability to give informed consent to treatment rather than on dangerousness, this approach avoids coercing individuals with adequate decisional capacity. It avoids forcing such individuals into outpatient care that is neither wanted nor likely to accomplish its intended objective of protection against harm. (This approach also obviates the need to make a judicial decision for patients who lack decisional capacity but who assent to treatments recommended by their doctors, even when they cannot make truly informed decisions. One rarely hears of physicians seeking to commit patients who agree to treatment,
PSYCHIATRIC SERVICES
even if they have anosognosia and lack understanding of their condition.) The proposed third way is more like a form of guardianship, but it does not deprive individuals of their rights to make decisions in other spheres of their lives where they might retain decisional capacity. With this approach to outpatient commitment, it might truly become assisted outpatient treatment and not a euphemism for coerced services that are ordered for individuals who have the capacity to decide whether they need treatment. In his 1999 report on mental health, the Surgeon General concluded that “Coercion should not be a substitute for effective care that is sought voluntarily.” He was encouraging the implementation of more effective treatments in the community as a way of avoiding coercive measures. Most studies of the effects of outpatient commitment have compared intensive treatment with and without a commitment order rather than comparing usual care with and without a commitment order (1,2). This evidence has led some to conclude that the merit of outpatient commitment is to commit the service system to the patient as much as the other way around. An outpatient commitment order compels the service system to provide appropriate services to individuals in need who are not able to decide for themselves about the benefits and risks of specific treatments. Conditional release after hospitalization For decades inpatients have been released from hospitalizations on conditional release. Patients released conditionally are expected to attend outpatient services, and a clinician is permitted to order them to be readmitted to a hospital if they are judged to be deteriorating and at risk of harm to themselves or others (5). Individuals on conditional release are presumed to be receiving outpatient treatment, or their status is known to police or other enforcement agents who can bring them to the discharging hospital for readmission. Conditional release often begins as a trial visit to a destination
' ps.psychiatryonline.org ' June 2014 Vol. 65 No. 6
outside the hospital, which then continues as some form of aftercare, permitting the patient with a history of threat of harm to be discharged earlier from an inpatient commitment than would otherwise be expected. Conditional release does not compel a specific treatment; however, the individual is expected to attend some type of aftercare services. It is intended to facilitate a quick readmission in the event of clinical deterioration or threat of harm. Criteria for inpatient admission are not changed by conditional release, and a patient who is returned to the hospital for reevaluation need not be readmitted, depending on the judgment of the assessing physician. Conditional release is a policy that has worked to accomplish many of the same objectives of outpatient commitment without creating an additional coercive mechanism. Continued use of conditional release in conjunction with an alternative approach to outpatient treatment orders that is focused on decisional capacity (3,4) and the need for specific treatments would allow us to proceed without unnecessary new coercive measures. Acknowledgments and disclosures The author thanks Robert Bernstein, Ph.D., Michael F. Hogan, Ph.D., Joseph P. Morrissey, Ph.D., Jeffrey W. Swanson, Ph.D., and Marvin S. Swartz, M.D., for helpful comments. The views expressed are those of the author and do not necessarily represent the position of any organization with which he is affiliated. The author reports no competing interests.
References 1. Swanson JW, Swartz MS: Why the evidence for outpatient commitment is good enough. Psychiatric Services 65:808–811, 2014 2. Morrissey JP, Desmarais SL, Domino ME: Outpatient commitment and its alternatives: questions yet to be answered. Psychiatric Services 65:812–815, 2014 3. Geller JL, McDermeit M, Grudzinskas AJ, Jr, et al: A competency-based approach to courtordered outpatient treatment. New Directions for Mental Health Services 75:81–95, 1997 4. Dawson J, Szmukler G: Fusion of mental health and incapacity legislation. British Journal of Psychiatry 188:504–509, 2006 5. McCafferty G, Dooley J: Involuntary outpatient commitment: an update. Mental and Physical Disability Law Reporter 14:277–287, 1990
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