Therapeutic Jurisprudence and Outpatient Commitment Law: Kendra's Law as Case Study

Abstract

This paper considers the implications of assisted outpatient commitment laws (OPC), with specific focus on New York's "Kendra's Law" through the lens of therapeutic jurisprudence (TJ). Kendra's Law's day-to-day operationalization, the on-going constitutional challenges, the law's potential impact on the delivery of other mental health services in the state, and - most important - the inevitability of a "mistake" (a case in which denial of a Kendra's Law commitment is followed by the commission of a notorious criminal act, or a case in which entry of a Kendra's Law commitment is followed by a patient developing neuroleptic malignant syndrome or some other potentially-fatal antipsychotic drug side effect because of a misdiagnosis or an error in prescription or medication dispensation) all make it inevitable that it will become the centerpiece of the next mental health law debate.

It is thus especially important that a discussion of Kendra's Law also provide a national perspective as well as background on OPC - and how, for decades, OPC has been the paradigm trompe l'oeil illusion of mental disability law. In this paper. I first offer some perspectives on the relationship between involuntary civil commitment and outpatient commitment, with a few brief words about how all of this relates to the concept of the "least restrictive alternative" (LRA). Then, I consider some of the empirical research that's been done on outpatient commitment laws in other jurisdictions - most notably, North Carolina - and focus on both the issues that seemed to matter to whether OPC "worked" and on the impact OPC may have had on "revolving door" commitments. After that, I look at the most controversial aspect of outpatient commitment: its relationship to forced drugging. Here, I consider briefly the civil libertarian critique of OPC/forced drugging laws, look at some important recent developments, and consider the state-of-the-art research done by the MacArthur Research Network on Mental Health.

Finally, I will look closely at Kendra's Law, providing a brief overview of the law itself, and identifying some "pressure points" and pivotal issues in the law. I believe that there are ambiguities in some of the "pressure points" that cry out for resolution, and that the appellate disposition of some of the pivotal issues will provide some clues as to the ultimate "real life" impact of Kendra's Law. Finally, I will consider the TJ implications of Kendra's Law, in part, in an effort to determine how it "fits" into the public's "take" on all of mental disability law.