Understanding Ethics in Assisted Outpatient Treatment: Perspectives and Considerations

Ethics in AOT From 3 Perspectives: Click to edit Master title style Psychiatry, Judiciary, and Treatment Advocacy Marvin Swartz, M.D. Duke University School of Medicine Stephen S. Goss, Judge Superior Courts of Georgia Brian Stettin, J.D. Policy Director, Treatment Advocacy Center Click to edit Master subtitle style AOT Communities of Practice Psychiatry, Judiciary, and Treatment Advocacy August 27, 2018 3:00pm 4:00pm ET

Disclaimer Click to edit Master title style The 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). Click to edit Master subtitle style 2

Reminders Click to edit Master title style Noise control Please keep your phones on mute if not taking part in the discussion. Please do not put your phones on hold! Click to edit Master subtitle style Recording This webinar is being recorded. 3

Assisted Outpatient Treatment Ethical Considerations for Clinicians Click to edit Master title style Click to edit Master subtitle style best interest Marvin Swartz, MD Department of Psychiatry and Behavioral Sciences Duke University School of Medicine incapacity

Types of outpatient commitment statutes Conditional release from hospital (40 states1) Click to edit Master title style Also known as trial visit or visit to discharge Alternative to hospitalization for people meeting inpatient commitment criteria, i.e., dangerousness (16 states2) Click to edit Master subtitle style Least restrictive alternative Preventive outpatient commitment (35 states and DC2) Court-ordered treatment authorized at a lower threshold than inpatient commitment criteria with the purpose of preventing further deterioration No outpatient commitment (4 states: MA, CT, MD, NM) 1 Melton et al., 2007; 2LawAtlas.org, 2016; 5

Does outpatient commitment work? Answer: It depends Click to edit Master title style Utilitarian perspective: Thinking about means vs. ends What 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?) Click to edit Master subtitle style 6

Whose perspective? What do AOT recipients think of AOT? Subjective quality of life Click to edit Master title style Swanson 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/12898503 Endorsement of personal benefit Swartz 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/16700137 Formal preference assessments Swartz 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, 1139-1146 https://www.ncbi.nlm.nih.gov/pubmed/12777273 Click to edit Master subtitle style 7

Is AOT fair? Click to edit Master title style Swanson, 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 Racial disparities in AOT Click to edit Master subtitle style Queue-jumping in AOT Swanson 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-2 8

AOT racial disparity indices in New York County: Ratios of AOT rates* for blacks compared to whites, using alternative denominators 8 Click to edit Master title style Over 7:1 Ratio of AOT rate for blacks to AOT rate for whites 6 Click to edit Master subtitle style 4:1 4 2:1 2:1 2 1:1 Parity line (ratio = 1.0) 0 County population County SMI population County SMI population in OMH services County SMI population in OMH services and hospitalized in year County SMI population with >1 involuntary hospitalizations in year Alternative AOT case rate denominators 9 * Period-prevalence of AOT cases active at any time during 2003, by selected denominators.

Ethical considerations in outpatient commitment policy and practice Click to edit Master title style 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. Outpatient commitment involves overriding some people s Click to edit Master subtitle style 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. 10

Ethicist Dan Brocks 3 scenarios for overriding incompetent patients choices Click to edit Master title style patient s manifest decision to go without treatment accurately reflects what the patient would have wanted in a non-impaired state 2. When the moral authority of the patient s treatment refusal is questionable, due to conflict with important interests of the patient 3. When the interests of persons other than the patient warrant overriding the patients choice 1. When there are good reasons to doubt that the Click to edit Master subtitle style Brock, D. (1994). Good decisionmaking for incompetent patients. Hastings Center Report. 11

Assisted Outpatient Treatment Ethical and Professional Issues Click to edit Master title style for Judges Click to edit Master subtitle style Stephen S. Goss, Judge Superior Courts of Georgia Albany, GA

Competency to decide if court annexed: Due Process Click to edit Master title style nor shall any state deprive any person of life, liberty, or property, without due process of law United States Constitution, Amendments V and XIV Click to edit Master subtitle style 13

Judge has to be vigilant in monitoring any changes in competency status. Click to edit Master title style 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. Click to edit Master subtitle style 14

Spell It Out Click to edit Master title style 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. Click to edit Master subtitle style 15

Judge: Publicist and Educator Tell the community about the need for AOT. Click to edit Master title style 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. Click to edit Master subtitle style 16

Assisted Outpatient Treatment Ethical Considerations for Respondent s Counsel Click to edit Master title style Click to edit Master subtitle style Brian Stettin, JD Policy Director Treatment Advocacy Center Arlington, VA

The Challenging Role of Respondents Counsel Represent client s: Click to edit Master title style Expressed Wishes? Best Interests? Click to edit Master subtitle style 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? 18

Texas Health & Safety 574.004(c) Click to edit Master title style 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. Click to edit Master subtitle style 19

What if respondents wishes are unclear? Appellant's contention that he demanded that his court-appointed Click to edit Master title style 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). Click to edit Master subtitle style 20

If Client Opposes AOT, Challenge Eligibility. Click to edit Master title style 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. Click to edit Master subtitle style 21

Once Order is Imposed, Counsels Duty Shifts. Click to edit Master title style 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. Except as to any appeal to higher court, an AOT order in place Click to edit Master subtitle style 22

Become a Zealous Advocate for Quality Services. Click to edit Master title style 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. Click to edit Master subtitle style 23

Q & A Click to edit Master title style Click to edit Master subtitle style 39

Contact Us Click to edit Master title style Click to edit Master subtitle style 345 Delaware Avenue Delmar, NY 12054 PH: (518) 439-7415 FAX: (518) 439-7612 http://www.samhsa/gov/gains-center 25 42