Mid-Atlantic Health Law TOPICS
The Constitutionality of "Kendra's Law" has been upheld in New York. Kendra's Law is a New York statute that allows a court to order a mentally unstable person to comply with an outpatient treatment plan, without the mentally ill person's consent. The law is named in memory of Kendra Webdale, a woman who was killed by a mentally unstable person in 1999.
Kendra's Law does not authorize forced medical treatment. Instead, a failure to comply with the court-ordered treatment plan triggers heightened scrutiny on the part of the patient's physician. If the physician then deems it necessary, the patient may be involuntarily committed to a hospital for up to 72 hours.
A. K.L. v Martin
In K.L. v. Martin, Kendra's Law recently withstood an attack on Constitutional grounds by a patient (identified as "K.L." in the decision) who was ordered to comply with an outpatient treatment program. K.L. argued that Kendra's Law violated the Due Process clause of the United States Constitution, because it allows a court to order medical treatment without first finding that the patient is incapacitated, and because it allows a patient to be removed to a hospital for up to 72 hours without a hearing.
New York's highest appellate court rejected the Constitutional attack. Although the court acknowledged the severe restrictions on the patient's freedom and the patient's right to refuse treatment, these restrictions were outweighed by the state's compelling interest in protecting its citizens.
B. Details of New York's Statute
Kendra's Law allows a co-resident or immediate family member of a mentally ill person, the hospital director of a hospital the mentally ill person has visited, the mentally ill person's parole officer, or certain other individuals to petition a New York court to order an "assisted" outpatient treatment plan, which plan may include medication.
A patient's failure to comply with a court-ordered assisted outpatient treatment plan subjects the patient to involuntary admission to a hospital for evaluation and treatment, for up to 72 hours. A petition for involuntary admission must be accompanied by the opinions of two examining physicians, and must be accepted by the director of a hospital. Once the petition is accepted, the examining physicians may order peace officers to enforce the involuntary admission.
C. Maryland Law
Almost forty states, including Maryland, have laws that are at least similar to Kendra's Law. In Maryland, a physician, psychologist, health officer, peace officer or "any other interested person" may petition the court for an "emergency evaluation" of an individual if the petitioner believes that the individual is suffering from a mental disorder.
If the court finds probable cause that the individual has a mental disorder, the court will order the individual to undergo an emergency evaluation. If the evaluee is found to be suffering from a mental disorder, meets the requirements for an involuntary admission, and is unwilling or unable to agree to a voluntary admission, the examining physician may seek to have the evaluee involuntarily admitted to a mental health institution.
To meet the requirements for an involuntary admission in Maryland, an individual must: a) have a mental disorder; b) be in need of inpatient care or treatment; c) present a danger to the life or safety of himself, herself or others; and d) be unwilling or unable to consent to voluntary admission. In addition, there must be no available, less restrictive form of intervention that is consistent with the welfare and safety of the individual.
Once an individual has been involuntarily admitted, medication may not be administered to the patient if he or she refuses, unless the medication has been approved by a panel of physicians. A panel may only approve medication if it finds that the medication is necessary to prevent the individual from being a danger to himself, herself or others. The individual need not be declared incompetent to receive involuntary treatment. Once the panel has made a decision to medicate an individual involuntarily, the individual may appeal that decision in an administrative hearing. That decision may then be appealed to the circuit court.
D. Similarities and Dissimilarities
Kendra's Law is thus both similar and dissimilar to Maryland law. Unlike New York, Maryland has no law giving a court the power to order an assisted outpatient treatment plan. Under both laws, patients suffering from mental health problems may be involuntarily admitted to a hospital. Additionally, Maryland has a more defined set of factors for a patient to be subject to involuntary admission than does New York.
However, the New York law provides that a patient may not be involuntarily admitted for more than 72 hours, unless the director of the hospital treating the patient applies to a court for a longer period of involuntary admission. The Maryland law, by contrast, does not set a limit on the duration of an involuntary admission, although involuntarily admitted patients may appeal their admission as soon as ten days following the admission.
June 22, 2004