Outpatient commitment is a court order for an individual with a mental disability to comply with a treatment plan on an outpatient basis. The order may require the person to attend therapy sessions, comply with a medication regime, or participate in mental health programs. Outpatient commitment is increasingly popular among state legislators and some psychiatrists and families as a way of compelling people with mental disorders to take medication while they are living in the community. It is touted as an alternative to inpatient hospitalization, but raises serious concerns about whether the state ought to compel a person, otherwise free, to take medication that deeply affects his or her body.

 

 

       Outpatient commitment occupies a paradoxical place in mental health law because it began as an expression of liberty and has been transformed into an expansion of state power over individuals. It originated as an expression of the principle that inpatient commitment could be ordered only if no less restrictive plaement is available. In the seminal case of Lake v. Cameron, 364 F. 2d 657 (D.C. Cir. 1966), the court held that the District of Columbia's civil commitment law must be interpreted to mean that an individual who met the legal criteria for involuntary hospitalization could not be confined in a psychiatric facility if she could live safely in the community. Instead, the court could order such a person to attend an outpatient program rather than confining her in a hospital. As another court reasoned, "Even if the standards for an adjudication of mental illness and potential dangerousness are satisfied, a court should order full-time involuntary hospitalization only as a last resort." Lessard v. Schmidt, 349 F.Supp. 1078, 1086 (E.D. Wis. 1972), vacated and remanded on other grounds, 421 U.S. 956 (1975)

 

       From the concept of a more humane and less restrictive alternative to hospitalization, however, outpatient commitment has been transformed to a means by which people with psychiatric disabiliies may be compelled to take antipsychotic medication or ordered into programs even if they do not meet the criteria for involuntary hospitalization. Supporters argue that people with serious mental disorders are more likely to remain stable if they continue to take medication but will decompensate if they do not. "Preventive" outpatient commmitment is necessary, they contend, to stop the "revolving door" of hospitalization, release, noncompliance with treatment, deterioration, and rehospitalization. The proponents of outpatient commitment are vocal, prolific, and unapologetic in their advocay of coercive solutions to individual mental health problems. See, e.g., Mulvey, Geller & Roth, The Promise and Peril of Involuntary Outpatient Commitment, 42 American Psychologist 571 (1987); Geller, Rights, Wrongs, and the Dilemma of Coerced Community Treatment, 143 American Journal of Psychiatry 1259 (1986).

 

       In response to these arguments, some states have enacted laws permitting compulsory medication in the community under very loose standards, such as that the person's condition is likely to "deteriorate" in the absence of treatment, the treatment is available, and the person will not consent to it. [For a compendium of these laws, see McCafferty & Dolley, Involuntary Outpatient Commitment: An Update, 14 Mental and Physical Disability Law Reporter 277 (1990).] North Carolina's law, for example, allows outpatient commitment in order to prevent, among other things, "further disabiity or deterioration." N.C. Gen. Stat. Sections 122C-263(d)(1989). Only a handful of states have laws like North Carolina's, which permits compulsion in the absence of a finding of dangerousness, but many more are considering them.

 

       Even devoted adherents of preventive outpatient commitment have expressed concern about the vast expansion of government authority over individual liberty it entails. Some psychiatrists have attempted to develop "clinical" guidelines to limit the group of individuals to whom outpatient commmitment laws are applied. [Geller, Clinical Guidelines for the Use of Involuntary Outpatient Treatment, 41 Hospital and Community Psychiatry 749 (1990).] Such guidelines, however, cannot erase the enormous expansion of state authority that this form of outpatient commitment represents.

 

       The press for state control over psychiatric patients living in their own homes has spawned some stinging critiques. One ground of criticism is based on its deprivation of the liberty of people who are not dangerous. Permitting judges to order people who do not meet the criteria for involuntary hospitalization to submit to a regime of medication in the community, critics argue, expands state control over people beyond limits the constitution tolerates. [See, e.g., Schwartz and Costanzo, Compelling Treatment in the Community: Distorted Dotrines and Violated Values, 20 Loyola of Los Angeles Law Review 1329 (1987): Stefan, Preventive Commitment: The Concept and its Pitfalls, 11 Mental and Physical Disability Law Review 288 (1987).] As one commentator has observed, "The predicted deterioration standard could easily create a class of patients who never escape the state's control because their dangerousness is always just around the corner." [Slogobin, Involuntary Community Treatment of People Who are Violent and Mentally Ill: A Legal Analysis, 45 Hospital and Community Psychiatry 685, 867 (1994).] Surprisingly, the constitutionality of these outpatient commitment laws remains largely untested.

 

       A second critique focuses on the clinical claims made on behalf of outpatient commitment. Supporters argue that people remain stable, comply with treatment expectations, avoid hospitalization (or rehospitalization), and live better lives under an outpatient commitment order. In a thorough review of empirical studies purporting to support these contentions, Kathleen Maloy demonstrated that many of the studies are methodologially flawed and their conclusions vastly overstated, thus providing "almost no valid empirical evidence in support of the effectiveness of [involuntry outpatient commmitment] laws vis-a-vis treatment compliance, success in the community for people with severe and persistent mental illness, or amelioration of the problems associated with 'revolving door' patients." [Maloy, Analysis: Critiquing the Empirical Evidence ; Does Involuntary Outpatient Commitment Work? Mental health Policy Resource Center (1992).]

 

       Thus, despite the known infringement of liberty outpatient commitment in its present form represents, the current evidence provides scant basis for believing it substantially improves patient outcomes.

 

       Third, as Maloy points out, the "revolving door" problem outpatient commitment is designed to solve is as likely to be a product of deficiencies in community mental health services as of lack of legal authority over patients. Even to the extent outpatient commitment lowers rehospitalization rates, it is not at all clear that the reason is court-ordered treatment rather than the availability of the treatment resources that accompany the law. Outpatient commitment may offer yet another illustration of society's use of compulsion over people with psychiatric disabilities as a substitute for providing appropriate services.