Balancing Civil Liberties and Civic Virtues

New Yorkers are subjected to a continuous drumbeat of news stories of violent acts perpetrated by persons with serious and persistent mental illness (what we in the field call “SPMI”) who have rejected psychiatric and mental health care. 

It is estimated that approximately 5% of the city’s population suffers from serious mental illness. From 2019 to 2023, a fraction of this fraction — between 3,200 and 3,500 city residents — were under an order to receive involuntary outpatient psychiatric treatment, referred to as an Assisted Outpatient Treatment order. 

The assertion that people with serious mental illness are more often victims of violent crime than perpetrators is true. However, it doesn’t negate the fact that many of the most attention-grabbing crimes committed on the city’s streets and subways are committed by those with such diagnoses. What is evident to many New Yorkers is that their wish to live in safe neighborhoods and ride subways in peace has been subordinated to the rights of persons with serious mental illness. They grasp that the balance between civil liberties and civic virtues has gotten badly out of whack. 

Belatedly, leaders are starting to recalibrate. New York Gov. Kathy Hochul has initiated a series of welcome measures, including funding the reopening of critically needed community and state inpatient psychiatric hospital beds as well as new residential units for mentally ill homeless people. And just recently, in her 2025 State of the State Address, the governor announced that she would continue to fight for humane treatment and safety by writing into law a new standard asserting that those lacking the mental capacity to care for themselves can be involuntarily committed into a psychiatric hospital. (This can happen under current law, but the statute has been interpreted such that many practitioners resist invoking it..) This follows persistent pressure from New York City’s Mayor Eric Adams to change the legal standard for involuntary commitment by passing the Supportive Interventions Act.

While these initiatives are important, they aren’t enough. Mental health professionals like me who have worked with these populations understand that to substantially improve their chances of success, we need to take stronger steps to enhance long-term psychiatric care, management and oversight.

Advocates assert that “the system” is failing those with serious and persistent mental illness, especially those who are homeless, largely because New York State inadequately funds its mental health system. The reality is that the state Office of Mental Health oversees a comprehensive mental health system and that New York State, along with California, expends the greatest amount on mental health services. While adequate funding of the system is necessary, it is not sufficient to achieve the clinical outcomes and community safety goals desired. 

A bigger problem is that, over the decades, those working to treat the seriously mentally ill have chronically fallen short because they have not been provided with the tools necessary for success — most pointedly, tools to ensure that unwell people start taking medication and comply with their agreed-upon treatment plans. New York State’s mental health system currently incorporates many programs that should serve as a basis for building a more robust mental health system. 

Plugging holes in outpatient treatment

The 1986 New York State Court of Appeals decision, Rivers v. Katz, limited the ability of psychiatrists to administer psychoactive medications over a competent patient’s objection. Simultaneously, it recognized the very limited right of the state in circumstances of dangerousness to override their objections. Tantalizingly, the justices wrote, “The absence of any standard for determining the permissible duration of forced medication is particularly disturbing.”

Effectively, since Rivers, the standard has been interpreted to mean that necessary psychotropic medications can only be administered over the patient’s objection immediately at the time of the emergency. Just as the standard for involuntary commitment warrants revision, so too does the threshold for the administration of psychoactive medications. Given the evolution of knowledge about serious and persistent mental illness and of the mental health system since Rivers, might it be possible to expand the duration of required adherence to psychoactive medications to encompass a broader time period?

In 1999, Gov. George Pataki signed Kendra’s Law, which created a system of involuntary outpatient commitment now referred to as Assisted Outpatient Treatment. This gives New York State the ability, via court orders, to require people who meet certain criteria to adhere to a treatment plan ordered by the court. The criteria include: being age 18 or older; having a diagnosis compatible with serious mental illness; being unlikely to safely survive in the community; having a history of not adhering to their treatment plan; being unlikely to volunteer to participate in an outpatient plan; needing treatment to prevent relapse; and being likely to benefit from an Assisted Outpatient Treatment order. 

A state report released after the law had been in place for five years found that Kendra’s Law was benefiting both patients and communities. Specifically, patients under such orders had improved self-care, fewer psychiatric hospitalizations, committed fewer violent crimes, had fewer arrests and incarcerations, and experienced less homelessness. For example, it was found that after six months in the program, 69% of enrollees adhered to their medication regime, as contrasted with 34% adherence prior to being placed under an order. In the same vein, engagement in ordered services improved from 41% to 62%. Thus, despite gains, clinically important degrees of non-adherence persisted.

But while such orders permit courts to mandate the taking of psychotropic medications, they fail to include a mechanism to enforce compliance with the medication order. Consequently, a non-compliant patient under an order may be readmitted to a psychiatric unit for evaluation — but upon readmission, they have the right to refuse medications except in the case of an acute emergency. If, after assessment, it is believed that psychiatric medications are necessary, the process of applying to the court for an order to administer medication over the person’s objection must begin anew, without taking into consideration any order for medication included in the existing Assisted Outpatient Treatment order.               

When treating people who are on the cusp of relapse, or have already relapsed, time is of the essence, as averting a psychotic episode is far superior to restarting treatment after reoccurrence. The Assisted Outpatient Treatment law, having never been made permanent, should be revised accordingly or, at the latest, when it next comes up for renewal in 2027. 

It would well serve patients and citizens if the law were modernized to permit the following for the entire duration of the outpatient commitment order: 

• Incorporate a mechanism by which adherence to mandated psychoactive medications will be enforced for the entire duration of the court’s treatment order. 
• Allow medication administration immediately upon hospital readmission if within the order’s timeframe.
• Include language that would avoid discontinuity of the ordered treatment plan in the event of disruptions in the psychiatric hospitalization, such as during a period of care on a medical unit and subsequent return to the inpatient psychiatric unit.

One more bold step

But the steps of strengthening outpatient treatment and clarifying the standard for potential inpatient hospitalization are still not enough.

In 2007 New York implemented a law called the Sex Offender Management and Treatment Act. It established something that’s become known as “civil commitment,” which is defined as “a new legal process to civilly confine and/ or closely supervise sex offenders who are about to be released from prison… but remain a clear threat to commit additional sex crimes.’”

Under this law, the Office of Mental Health provides treatment to incarcerated perpetrators — and at the end of their sentences, offenders are directly relocated from prison to newly created and secure inpatient treatment units run under the auspice of the agency. Designated individuals who meet stringent criteria may be managed in the community under something called a Strict and Intensive Supervision and Treatment order. Under such an order, the Department of Correction and Community Supervision works with community providers to establish adherence to an established treatment plan and a closely monitored regimen of supervision.

New York State should consider creating an equivalent system for treatment and oversight of the small cohort of serious and persistently mentally ill people who have repeatedly committed violent crimes. In 2023, The New York Times published an important investigation, “Behind 94 Acts of Shocking Violence, Years of Glaring Mistakes,” which showed the cracks through which many of these individuals may fall  in the current system. 

Giving the state this kind of power would be no small step, and the population to whom it would apply would have to be very carefully and narrowly defined; civil libertarians and advocates would loudly protest. But doing so would greatly raise the probability that a small subset of persons would receive intense care while incarcerated and then afterward as psychiatric inpatients. It would also increase the likelihood of far tighter community monitoring and adherence to treatment if (or when) released than can be achieved presently. 

By enacting changes to the Assisted Outpatient Treatment law and the Supportive Interventions Act, the governor and legislators can improve services for the most severely mentally ill and better protect communities. But given the many gaps that let psychotic individuals fall off their treatment plans, we should seriously consider going further. With an eye towards monitoring and treating the small group of very dangerous individuals with severe mental illness, we should conduct a feasibility study focused on implementing a system modeled on the Sexual Offender Management and Treatment Act. Bold steps are necessary to increase the likelihood of success in treating an incredibly challenging group of people — and keeping New Yorkers safe.