Vermont case shines light on assisted outpatient treatment use

By Catherine Robertson Souter
August 21st, 2015

A recent court case in Vermont may change the way the state can utilize involuntary outpatient commitment, also known as assisted outpatient treatment (AOT). Vermont’s Legal Aid Mental Health Law Project successfully argued a case in front of the state’s Supreme Court in April asking that a client be released from his AOT since the state had failed to prove that he will become a danger to himself or others in the near future.

Across the United States, AOT has become more common in the past decade, with 45 states having some form of the law on their books. (Connecticut, Massachusetts, Maryland, New Mexico and Tennessee are the exclusions.) The laws vary in scope, however.

“There are 10 states who now have preventative AOT laws requiring people to accept treatment,” said Marvin Swartz, M.D. lead investigator of a recent study on New York’s AOT law and professor of psychiatry at Duke University. “In the other 35, someone can be committed to involuntary outpatient treatment but they must be dangerous at the time.”

Vermont falls under that second category, where the person must be currently a danger to himself or others. Extending the treatment requires proof that, in the near future, the subject’s condition will deteriorate and he will become a danger. It is on the phrase “in the near future” that this case hinged. The state Attorney General’s office argued that a client’s condition must be predicted to deteriorate soon, while the defense counsel argued that the state should also show he would soon become a danger to himself.

“The psychiatrist in this case could say with confidence that the person will deteriorate without proper treatment in six to 12 months and would eventually become a danger to himself or others because he had a history of being a danger to himself in the past,” said Philip Back, J.D., assistant attorney general for the state of Vermont, “It was really a technical argument about the phrase ‘in the near future’ and to what part of the statute does it apply. It was not enough for us to prove he would become dangerous eventually, we had to predict when.”

Nationwide, this case may be going against a trend towards a more aggressive approach to AOT. With a rise in high-profile tragedies, there has been greater attention paid to identifying and treating those who are mentally ill and could turn violent.

A 2010 Duke University study showed that New York’s preventative version of the AOT law, popularly known as “Kendra’s Law,” led to reduced rates of hospitalization, fewer arrests and cost savings for the state.

“It is a very controversial topic,” said Swartz, “because there are many patient’s rights advocates who feel the law is inappropriate because the court should not be mandating treatment for people who have not done anything wrong. While this is a valid argument, we also have found that if you look at the actual people who come under the commitment orders, they don’t usually object particularly where there is a scarcity of services and they go to the head of the line. They are not as oriented toward their civil liberties as to whether they have treatment and a place to live and the other services these orders provide.”

The Vermont case has already begun to affect how others continue, or discontinue, their treatment. John McCullough, J.D., director of Vermont Legal Aid’s Mental Health Project, spoke of a woman who used the case to petition the Department of Mental Health for an end to her treatment plan. In another case, according to Back, a man was successful with a lower court in having his outpatient commitment order vacated.

“The way that community mental health centers view it is that if things are working they generally like to keep the treatment plan in place,” said McCullough. “Why mess with what seems to be successful? And they are less likely to look at this as a significant limitation on personal freedoms. From my perspective, the courts are now applying the law the way it was written and are not giving the state such a free hand.”

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