Marvin Swartz MD Duke University School of Medicine Stephen S Goss Judge Superior Courts of Georgia Brian Stettin JD Policy Director Treatment Advocacy Center AOT Communities of Practice ID: 1039943
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1. Ethics in AOT From 3 Perspectives: Psychiatry, Judiciary, and Treatment AdvocacyMarvin Swartz, M.D.Duke University School of MedicineStephen S. Goss, JudgeSuperior Courts of GeorgiaBrian Stettin, J.D.Policy Director, Treatment Advocacy Center AOT Communities of Practice – Psychiatry, Judiciary, and Treatment AdvocacyAugust 27, 20183:00pm – 4:00pm ET
2. DisclaimerThe views, opinions, and content expressed in this presentation do not necessarily reflect the views, opinions, or policies of the Center for Mental Health Services (CMHS), the Substance Abuse and Mental Health Services Administration (SAMHSA), or the U.S. Department of Health and Human Services (HHS).
3. RemindersNoise controlPlease keep your phones on mute if not taking part in the discussion.Please do not put your phones on hold! RecordingThis webinar is being recorded.3
4. Assisted Outpatient TreatmentEthical Considerations for CliniciansMarvin Swartz, MDDepartment of Psychiatry and Behavioral SciencesDuke University School of Medicinebest interestrightsautonomyriskincapacity
5. Conditional release from hospital (40 states1)Also known as “trial visit” or “visit to discharge”Alternative to hospitalization for people meeting inpatient commitment criteria, i.e., dangerousness (16 states2)Least restrictive alternativePreventive outpatient commitment (35 states and DC2)Court-ordered treatment authorized at a lower threshold than inpatient commitment criteria with the purpose of preventing further deteriorationNo outpatient commitment (4 states: MA, CT, MD, NM)1 Melton et al., 2007; 2LawAtlas.org, 2016;Types of outpatient commitment statutes
6. Does outpatient commitment work?Answer: It depends…Utilitarian perspective: Thinking about means vs. endsWhat do we mean by “outpatient commitment”?What do we mean by “work”? (What is the goal?)Does it work ? Compared to what?Does it work ? For whom?Does it work ? Where?Does it work ? How? (And for how long?)Does it work ? So what? (Should we do it?)
7. Whose perspective?What do AOT recipients think of AOT?Subjective quality of lifeSwanson JW., Swartz MS., Elbogen E., Wagner HR., & Burns BJ. (2003). Effects of involuntary outpatient commitment on subjective quality of life in persons with severe mental illness. Behavioral Sciences and the Law, 21, 473-491.https://www.ncbi.nlm.nih.gov/pubmed/12898503Endorsement of personal benefitSwartz MS., Swanson JW., & Monahan J. (2003). Endorsement of personal benefit of outpatient commitment among persons with severe mental illness. Psychology, Public Policy and Law, 9:1, 70-93.https://www.ncbi.nlm.nih.gov/pubmed/16700137Formal preference assessmentsSwartz MS., Swanson JW., Hannon MJ., Wagner HR., Burns BJ., & Shumway M. (2003.) Preference assessments of outpatient commitment for persons with schizophrenia: Views of four stakeholder groups. American Journal of Psychiatry, 160, 1139-1146https://www.ncbi.nlm.nih.gov/pubmed/12777273
8. Racial disparities in AOTSwanson, J., Swartz, M., Van Dorn, R., Monahan, J., McGuire, T., Steadman, H., & Robbins, P. (2009). Racial disparities in involuntary outpatient commitment: Are they real? Health Affairs, 28, 816-826.https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.28.3.816“Queue-jumping” in AOTSwanson JW., Van Dorn RA., Swartz MS., Cislo AM., Wilder CM., Moser LL., et al. (2010). Robbing Peter to pay Paul: Did New York State's outpatient commitment program crowd out voluntary service recipients? Psychiatric Services, 61, 988-95.https://uncch.pure.elsevier.com/en/publications/robbing-peter-to-pay-paul-did-new-york-states-outpatient-commitme-2Is AOT fair?
9. Parity line (ratio = 1.0)Alternative AOT case rate denominators* Period-prevalence of AOT cases active at any time during 2003, by selected denominators. 02468AOT racial disparity indices in New York County: Ratios of AOT rates* for blacks compared to whites, using alternative denominatorsCounty populationCounty SMI populationCounty SMI population in OMH servicesCounty SMI population in OMH services and hospitalized in yearCounty SMI population with >1 involuntary hospitalizations in yearRatio of AOT rate for blacks to AOT rate for whitesOver 7:14:12:12:11:1
10. Outpatient commitment involves overriding some people’s choices to forego mental health treatment.AOT should not be applied to people who are willing to seek treatment voluntarily and simply need help accessing that treatment.A court order alone doesn’t magically remove barriers to care for persons with serious mental illness.There are legitimate, ethical reasons for overriding some patients’ expressed choices.Safety and welfare of the patient and others may be affected.Patient lacks capacity to make and communicate authentic decisions.Ethical considerations in outpatient commitment policy and practice
11. When there are good reasons to doubt that the patient’s manifest decision to go without treatment accurately reflects what the patient would have wanted in a non-impaired stateWhen the moral authority of the patient’s treatment refusal is questionable, due to conflict with important interests of the patientWhen the interests of persons other than the patient warrant overriding the patients’ choiceEthicist Dan Brock’s 3 scenarios for overriding incompetent patients’ choicesBrock, D. (1994). Good decisionmaking for incompetent patients. Hastings Center Report.
12. Assisted Outpatient Treatment Ethical and Professional Issues for JudgesStephen S. Goss, JudgeSuperior Courts of GeorgiaAlbany, GA
13. “…nor shall any state deprive any person of life, liberty, or property, without due process of law…”United States Constitution, Amendments V and XIVCompetency to decide if court annexed: Due Process
14. Even though an AOT outpatient commitment is civil in nature and is not a criminal court case, the participant has to be competent to sign any court papers, confidentiality waivers, etc.Monitoring includes…Assessing if the participant is able to assist counsel.Observing any changes in mental status in subsequent hearings.Judge has to be vigilant in monitoring any changes in competency status.
15. If participant meets current mentally competent standards, do not stop there. Make sure the participant knows what he or she is agreeing to do in the AOT court program.Have a staff person go over any printed materials.Procedural justice: Participants often feel they are being treated fairly if the process is explained. Better buy-in usually results in better program outcomes.Spell It Out
16. While telling success stories, do not disclose confidential information about a participant.Be cautious not to create the appearance of a fixed position on the particulars of cases or other comments, which might call impartiality into question.Judge: Publicist and Educator Tell the community about the need for AOT.
17. Assisted Outpatient TreatmentEthical Considerations for Respondent’s CounselBrian Stettin, JDPolicy DirectorTreatment Advocacy CenterArlington, VA
18. The Challenging Role of Respondent’s CounselRepresent client’s:Expressed Wishes?Best Interests?Client opposition is typically less of an issue in the AOT context than in the inpatient commitment context. Most respondents welcome AOT.But what if a client is opposed, despite counsel’s view that AOT is needed to avoid more restrictive treatment settings in the future?
19. Texas Health & Safety § 574.004(c)“The attorney may advise the proposed patient of the wisdom of agreeing to or resisting efforts to provide mental health services, but the proposed patient shall make the decision to agree to or resist the efforts. Regardless of an attorney’s personal opinion, the attorney shall use all reasonable efforts within the bounds of law to advocate the proposed patient’s right to avoid court-ordered mental health services if the proposed patient expresses a desire to avoid the services. If the proposed patient desires, the attorney shall advocate for the least restrictive treatment alternatives to court-ordered inpatient mental health services.”
20. What if respondent’s wishes are unclear?“Appellant's contention that he demanded that his court-appointed attorney represent him as a ‘zealous’ advocate and he failed to do so, is not demonstrated by the record. This was, of course, a civil, not a criminal proceeding. When a person is alleged to be mentally ill and subject to hospitalization, it is readily comprehensible that he may desire that his counsel act to protect his rights by acting in what he believes to be his client's best interests. Obviously, those best interests may include hospitalization. There is nothing in the record to show that, instead, appellant wished his attorney to pursue his release to the exclusion of other considerations, even though his best interests might indicate hospitalization as the best course of action.” In re Slabaugh, 16 Ohio App. 3d 255 (Ct. App. Ohio, Franklin County, 1984).
21. If Client Opposes AOT, Challenge Eligibility.In “shared criteria” states (PR, MS, NV, UT, WY, usually OH), counsel generally argues respondent is not presently a danger to self or others.In “separate criteria” states (AL, CA, FL, IL, KY, NM, OK, TX, sometimes OH), counsel must hold petitioner to its burden of proving all AOT criteria by clear and convincing evidence.Objective factors: e.g., Does respondent have the requisite history of treatment non-adherence?Subjective factors: e.g., Is respondent unlikely to comply with voluntary treatment? Is respondent likely to benefit from AOT?Cross-examine petitioner’s witnesses; consider presenting respondent and/or own expert.
22. Once Order is Imposed, Counsel’s Duty Shifts. Except as to any appeal to higher court, an AOT order in place means there is no longer a matter in controversy. This releases counsel from the duty of an adversarial posture.Surest way to defeat AOT’s promise is for counsel to over-emphasize the limits of the court’s ability to compel engagement (lack of “teeth,” no legal duty to attend hearings, etc.).Ethics rules require honesty with client. It is honest to say, “This is something you should take seriously, because it offers you a great opportunity to stay out of the hospital, stay out of jail, achieve your life goals.” Many AOT programs include respondent’s counsel in regular meetings with treatment team and the judge.
23. Become a Zealous Advocate for Quality Services.Respondent’s counsel is in best position to hold AOT to the ideal of a mutual commitment: patient committed to system, and vice versa.If the law says respondent must be afforded participation in the development of the treatment plan, make sure that happens.Consider the treatment plan a series of service delivery promises. Hold providers accountable for any failure to provide promised care.If at any point during the period of the order it becomes apparent that the treatment plan should be modified, bring a motion to court.
24. Q & A39
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