New York has debated forced psychiatric treatment for decades

On Jan. 3, 1999, Andrew Goldstein pushed Kendra Webdale in front of a subway train, killing her. Goldstein suffered from untreated schizophrenia, and the shocking incident galvanized a movement for a new law allowing judges to order mentally ill people to comply with treatment plans drawn up by physicians, also known as “assisted outpatient treatment.” Within months, Kendra’s Law, named in honor of Webdale, passed the state Legislature and was signed into law. It became a model for other states. Kendra’s Law was enacted nearly three decades after New York reorganized its mental hygiene law, which created a new standard for “involuntary commitment” to allow psychiatrists to hospitalize mentally ill patients against their will.

This year, New York is poised to change its laws around involuntary commitment once again. Concerns over the presence of mentally ill people on the streets and shocking incidents of violence in the subway system prompted Gov. Kathy Hochul to propose amending the state’s mental hygiene law to expand the criteria for involuntary commitment. State lawmakers have not supported the proposed changes, which are supported by psychiatric groups but opposed by some civil liberties organizations and community-based clinicians.

It’s just the latest development in the larger debate over the necessity of forced psychiatric treatment that has played out over the past 50 years.

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The first state-run mental health asylum in New York opened in 1843 in Utica. Over the next century, the number of people in asylums continued to grow – reaching a peak of over 90,000 people in 1955. By the late 1950s, though, the asylum model was falling out of favor. Journalistic investigations by Nellie Bly, Geraldo Rivera and others into the abuses at mental institutions, the development of the first antipsychotic drugs and a growing belief among psychiatrists to “deinstitutionalize” psychiatric treatment and replace large, state-run asylums with community-based treatment centers.

In 1963, President John F. Kennedy signed into law the Community Mental Health Act, which funded the construction and staffing of 1,500 community mental health centers across the country. Kennedy’s vision was never fully realized; only about half of the planned community mental centers were ever built, and those that did operate were chronically underfunded.

Though the community-based treatment model was never fully scaled up, the asylums were emptied. Steve Rosenheck, an assistant professor of psychiatry at Columbia University who has studied the history of psychiatric treatment in New York, said the number of people held in state-run mental health facilities in New York declined by about 2,000 people per year between 1964 and 1968 and then by about 7,000 people per year between 1968 and 1974. Today, Rosenheck said, the state-run mental facilities that held 90,000 people in the 1950s now hold fewer than 6,000 people – mostly mentally ill people who face criminal charges but have been determined incompetent to stand trial.

New York state passed its involuntary commitment law in 1964. It laid out the criteria for involuntary commitment: Two psychiatrists had to certify that someone was “dangerous” before they could be confined. The law also created the Mental Health Information Service (later renamed to the Mental Hygiene Legal Service), a kind of public defender’s office that represents people facing involuntary commitment. The idea was to make determinations about involuntary commitment into an adversarial legal proceeding, akin to a criminal trial, complete with strong protections for the patient “defendant.” The involuntary commitment law was tightened in 1972, replacing the “dangerousness” standard with a requirement that the person has a mental illness that is “likely to result in serious harm” to themselves or others – the standard that is used to this day.

Not all psychiatrists were happy with this new state of affairs. In a 1973 article titled “Dying with Their Rights On,” Wisconsin psychiatrist Darold Treffert argued that the increasing obsession with patients’ rights had led to people with mental illness being denied the treatment that they needed. Courts were respecting people’s rights to refuse hospitalization and treatment, and the result was that they were suffering and dying. Other psychiatrists took this argument even further, suggesting that people with serious mental illness suffered from a form of “anosognosia” – a neurological condition in which a patient is unable to recognize that they have an illness or disability.

One of the most influential proponents of this school of thought was Edwin Fuller Torrey, a psychiatrist and schizophrenia researcher who founded the Treatment Advocacy Center to push for the adoption of state laws allowing involuntary treatment. For decades, Torrey has argued that people’s refusal to accept necessary treatment is itself a symptom of serious mental illness – rather than a reasoned rejection of treatment that the law must respect. In turn, those clinicians opposed to involuntary commitment have argued that it is paternalistic and dangerous for doctors to deny the validity of patients’ explicit refusals of treatment.

Torrey and the Treatment Advocacy Center were instrumental in the passage of Kendra’s Law, working alongside politicians who viewed the issue of mental illness primarily through the lens of public safety. The law, passed in 1999, allows judges to order mentally ill people to follow a specific treatment plan drawn up by a psychiatrist. If the person does not comply with the treatment plan, then they can be picked up by police officers and taken to a hospital for a psychiatric evaluation.

Kendra’s Law was supported by a coalition of groups and politicians, including the National Alliance on Mental Illness, then-Gov. George Pataki and then-state Attorney General Eliot Spitzer. The law was drafted by Brian Stettin, then an assistant attorney general in Spitzer’s office who went on to join the Treatment Advocacy Center and currently serves as New York City Mayor Eric Adams’ chief adviser on serious mental illness. The law was bitterly opposed by civil liberties groups like the New York Civil Liberties Union and psychiatrists who were against the idea of forcing people into treatment. But it ultimately passed with overwhelming support in the state Legislature.

Former Assembly Member Richard Gottfried, the longtime chair of the Assembly Health Committee, was one of 142 Assembly members to vote in favor of the bill. He told City & State that he voted for the legislation reluctantly and had several concerns with it. “I don’t think it actually had anything to do with the death of Kendra Webdale because the man who pushed her onto the subway tracks had, in fact, been going from one hospital to another seeking mental health treatment and (was) being turned away,” he said. “So it wasn’t that anybody needed to push him into outpatient treatment. They needed to push the people who do outpatient treatment into opening their door to him, and of course the bill doesn’t deal with that.”

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In January, Gov. Kathy Hochul proposed amending the state’s mental hygiene law to expand the criteria for involuntary commitment. It would be the first substantive change to the involuntary commitment standard since 1972, according to Rosenheck.

Under the current law, someone may only be subject to involuntary admission to a hospital if a psychiatrist certifies that they suffer from a mental illness that is “likely to result in serious harm to himself or others.” In turn, the law defines “likely to result in serious harm” as a substantial risk of physical harm due to either “threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that the person is dangerous to himself” or “homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm.”

The governor’s proposal would expand that definition to also include “a substantial risk of physical harm to the person due to an inability or refusal, as a result of their mental illness, to provide for their own essential needs such as food, clothing, medical care, safety, or shelter.” This means that people with a mental illness who cannot safely provide for themselves could be hospitalized against their will, even if they are not suicidal or homicidal.

The state Legislature has opposed the governor’s proposal to expand the criteria for involuntary commitment; both the Assembly and the state Senate omitted the proposal from their one-house budget proposals. Civil liberties groups are also against the proposed changes to the law. At a time when homelessness in New York City is increasing and City Hall has been aggressively clearing homeless encampments, treating the inability to meet one’s needs as a sign of mental illness could lead to homeless people being forced into mental health facilities just to get them off the streets.

Just as when Kendra’s Law was being debated in the 1990s, much of the discourse around the governor’s proposal, especially in conservative tabloids, has focused on strengthening involuntary commitment laws in order to get mentally ill people out of the subways where they could pose a threat to other people. Take the conclusion of a recent New York Post editorial criticizing the state Legislature for opposing the governor’s plan: “Next time you’re maneuvering around a dangerous-seeming loon, above or below ground, remember: The Democrats who run the Legislature think we need more such folks running free – guaranteeing even more maimings, killings and avoidable tragedies to come.”

The state Office of Mental Health, which helped draft the governor’s proposal, insists that is not the point of the law. Dr. Ann Marie Sullivan, the commissioner of the Office of Mental Health, told City & State that the law is targeting a very small, very specific population of people who desperately need treatment. She gave the example of a person living on the street who had cellulitis in their leg, a serious infection that if left untreated could require the leg to be amputated, but who refused to go to the emergency room because they insisted that there was nothing wrong.

She gave another example from her own experience working as a community psychiatrist. “I used to see him on the streets and then suddenly I go to see him and he’s panting, he’s barely breathing. But he said, ‘There’s nothing wrong with me, I don’t want to go to the hospital, I don’t want to go with you,’” she recalled. “He wasn’t causing any disruption on the street, he wasn’t scaring anybody, he wasn’t threatening anybody, but he was clearly getting sicker and sicker. And I took him to the hospital. That’s the kind of person you’re talking about.”

Sullivan said she thought most unsheltered homeless people with a mental illness would still not be subject to involuntary commitment, even under the newly expanded criteria. “Someone who has been stably sitting on the subway bench for six months, really knows how to live outside, unsheltered, kind of has a lot of bags around them and maybe talks to themselves – that’s not going to affect (them) at all,” she said.

The commissioner specifically rejected the idea that the law could be abused to involuntarily hospitalize large numbers of unsheltered homeless people. “The reality is that it would be illegal for a psychiatrist to do that, and believe me, they’re not going to do it,” she said.

One reason to suspect that the governor’s proposal won’t lead to a flood of new involuntary commitments is that her proposed language is already the de facto standard. The current form that a psychiatrist must fill out when certifying that someone is in need of involuntary commitment explicitly defines harm to one’s self as “the person’s refusal or inability to meet his or her essential need for food, shelter, clothing or health care.”

This isn’t a new development; it has been built on decades of court decisions interpreting the state’s involuntary commitment law.

One of the most famous cases involved a homeless woman named Joyce Brown, also known as “Billie Boggs,” who was taken to Bellevue against her will in 1987. After Boggs objected to her hospitalization, a state court held a hearing to consider whether to release her. Legendary civil rights attorney Norman Siegel, then the executive director of the New York Civil Liberties Union, agreed to take her case. Four psychiatrists testified on behalf of Bellevue that Boggs was seriously mentally ill and posed a danger to herself because she was unable to fulfill her needs. They cited the fact that Boggs was urinating and defecating on herself, wearing inadequate clothing in winter, ripping up money that passersby gave her and running into traffic. But three psychiatrists recruited by Siegel and the NYCLU to testify on Boggs’ behalf  told the court that Boggs’ strange behavior, while inappropriate, did not necessarily indicate that she was mentally ill or a danger to herself.

The judge overseeing the case was frustrated by the fact that the different psychiatrists had reached diametrically opposite opinions as to Boggs’ mental health and safety. “It is evident that psychiatry is not a science amenable to the exactness of mathematics or the predictability of physical laws,” he complained in his ruling – and decided to release her, largely because he thought she seemed sane when she testified before him in court. An appellate court later reversed that decision, finding that the Bellevue psychiatrists had clearly shown Boggs was unable to safely care for herself, thus meeting the criteria for involuntary commitment.

Given that the inability to care for one’s needs has already been part of the de facto standard for involuntary commitment and has been for decades, why try to amend the statute?

Sullivan believes that codifying the standard would make clinicians more likely to use it when evaluating whether someone can be involuntarily committed. “It is in the case law, but when you talk to individuals who are making these clinical decisions, case law carries a certain weight for them, but something actually being in the law itself can carry a different level of weight,” she said.

In recent years, both the state Office of Mental Health and the New York City Department of Health and Mental Hygiene have issued guidance documents for clinicians and others who interact with mentally ill people reminding them that they can involuntarily commit people who are not violent.

“There is often a misconception amongst both police as well as front-line mental health crisis intervention workers that a person with mental illness must present as ‘imminently dangerous’ in order to be removed from the community to a hospital. … This is not the case,” reads a 2022 guidance memo issued by the state Office of Mental Health, which goes on to cite the appellate court’s ruling in the Boggs case.

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The governor’s proposal also includes changes to Kendra’s Law. The primary change is a relatively minor one; it would allow people who have previously been issued an assisted outpatient treatment order to be immediately put on a new order if they are hospitalized or incarcerated within six months of the old order expiring.

In addition, the proposed change to the definition of “likely to result in serious harm,” while only intended to expand the statutory standard for involuntary commitment, would also technically change the criteria for assisted outpatient treatment as well (since Kendra’s Law specifically cites that definition), though this appears to be an oversight by the state Office of Mental Health rather than a deliberate expansion of Kendra’s Law. The office told City & State that it does not expect that the governor’s proposal will have any effect on the number of people subject to assisted outpatient treatment.

Though less controversial than involuntary commitment, assisted outpatient treatment has still been criticized by some civil liberties groups and community-based treatment organizations that objected to the idea of forcing people into treatment that they do not want.

“Just being coerced is itself very traumatizing and can really drive people further away from care, because then the system is viewed in particular ways, it’s not viewed as helpful but can be seen as harmful,” said Cal Hedigan, the CEO of Community Access, a nonprofit founded in 1974 that provides supportive housing and social services to people with mental illness.

Community psychiatrists and advocates like Hedigan said the state should invest more in a variety of voluntary treatment options. “We need a system where people can access more kinds of support – outpatient counseling, family counseling, programs like clubhouses, places where people would be asked ‘What kind of help do you want?’ Not like, ‘We have this idea of the help that you want and that’s all we’re going to give you,’” Hedigan said.

The clubhouse model that Hedigan supports is in many ways the opposite of assisted outpatient treatment. Pioneered by Fountain House – a nonprofit founded in the 1940s in by former patients of a mental hospital – the model takes a broad view of treatment, emphasizing community and peer support, and connecting people with serious mental illness to housing, employment, education and crisis services. The clubhouse model has been widely praised, even by psychiatrists like Torrey who continue to support involuntary commitment in other contexts.

Assembly Member Jenifer Rajkumar, whose senior adviser Arvind Sooknanan is a board member of Fountain House, recently introduced an ambitious piece of legislation called the Empire State of Mind Act that would provide a right to voluntary treatment for all people with serious mental illness.

Under the bill, any person experiencing a mental health crisis who is admitted to an emergency room would have the right to ongoing treatment (if they want it) and could sue hospitals for discharging them prematurely. When they do choose to leave the hospital, they would be provided with wraparound services, including access to supportive housing, clubhouses and employment opportunities – and a peer advocate to coordinate their care. The bill would also provide mental health screenings to all people entering correctional facilities and homeless shelters to ensure that they receive care.

“We need a Marshall Plan to provide thousands of our fellow New Yorkers the mental health care and housing they need to thrive,” Rajkumar said in a statement announcing the bill. “I have listened to the stories of those caught in the revolving door of hospitals, navigating Byzantine application processes and enduring endless waitlists. When we pass the Empire State of Mind Act, we will ensure that every New Yorker has a dignified pathway to recovery.”

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The circumstances of Kendra Webdale’s death have little relationship with the law that bears her name. The man who pushed her in front of a subway had repeatedly sought help, only to be discharged from hospitals with little support. The system failed him – and Webdale – due to a lack of resources, not a lack of forced treatment.

The general public tends to show the most interest in the mental health crisis in the wake of violent incidents. “Every time there is some tragic or horrific act, the immediate impulse, it seems like, out in the world is to say, ‘Yes, and that’s why we need more involuntary and coercive services’ rather than, ‘Yes, that’s terrible and that’s why we need a mental health system that is more welcoming and more responsive to individual needs,’” Hedigan said.

There may be a greater political appetite these days for forcing mentally ill people to accept treatment, in this “Era of Punitive Excess.”

Gottfried said: “In many aspects of our society, Americans are more willing to provide resources if they think they’re punishing somebody than if they’re providing service to somebody. That’s just how we seem to be.”