As seen in Virginia Lawyers Weekly February 19, 2013
It’s no secret that mental health care in this country is inadequate, and unfortunately, Virginia’s system is no exception. In 2009, the National Alliance on Mental Illness gave Virginia a C for how it treats the mentally ill. (The national average was a D.)
Nearly one out of every five Virginians suffers from a mental illness. Virginia, like many states, has a civil commitment process to compel individuals to undergo treatment, both inpatient and outpatient. Forty-four states currently have assisted outpatient treatment, or AOT, laws, which are aimed at improving access and adherence to mental health support programs in the community.Outpatient Treatment ProcedureTermed “mandatory outpatient treatment,” or MOT in Virginia, this court-ordered treatment is for individuals who meet certain criteria, and often includes case and medication management, individual or group therapy and day programs.
Mandatory outpatient treatment may be ordered in lieu of inpatient hospitalization – “regular” MOT – but is most often used when an individual has completed inpatient treatment and is ready for discharge – “step-down” MOT. Such treatment can be ordered for up to 90 days.
For a court to order regular MOT, an individual must meet the criteria to be committed as an inpatient, and must be willing to participate and remain in the outpatient treatment plan. The court makes this determination at the civil commitment hearing, based on the proposed treatment plan and the availability of the services and providers.
Step-down MOT also requires an individual to meet commitment criteria, but may only be ordered if the individual has been committed through the civil commitment process at least twice in the last 36 months, has not complied with past discharges, is unlikely to voluntarily participate in the outpatient services, and such services would be beneficial. A physician must report to the court the individual’s condition, willingness and ability to take part in the outpatient treatment, as well as the availability of the proposed services.
Following the hearing, the local community services board must promptly develop and submit a comprehensive treatment plan for court approval. Subsequently, the CSB must monitor implementation of and compliance with the plan. The CSB must report any material noncompliance to the court, which may then order inpatient admission, or renew, modify or rescind the MOT order.
The court may also extend, for up to 180 days, an expired MOT order without a hearing, if both the individual and CSB are in agreement.
In recent years, the General Assembly has amended Virginia Code § 37.2-817, which governs inpatient and outpatient treatment of mentally ill individuals, in an effort to make MOT a more effective component of Virginia’s commitment process.
These laws now permit family members, personal representatives, treating physicians, and community services boards to seek court-ordered outpatient treatment of a hospitalized individual. Furthermore, a court may order mandatory outpatient treatment only if the patient has agreed to and is able to comply with the proposed treatment plan, and such plan includes services that are actually available and in place.
Benefits of outpatient treatment
In the U.S., nearly 15 percent of inmates suffer from a severe mental illness, and there are likely more mentally ill individuals living on the streets than there are receiving care as inpatients.
Studies have shown that court-ordered outpatient treatment reduces the rates of negative outcomes such as relapse and re-hospitalization, as well as violent behavior, homelessness, arrests and incarceration. This translates into increased availability of hospital beds, which are constantly in short supply, and fewer mentally ill inmates, who receive little to no mental health treatment during their confinement.
A successful outpatient treatment system can also be a cost-effective alternative to inpatient hospitalization, which costs $237 per day, since many inpatient services can be provided on an outpatient basis, including therapy and medication management.
Outpatient care also helps individuals achieve recovery and regain autonomy, and reduces caregiver stress. Individuals more consistently adhere to treatment regimens, and are able to reside in the community and access the benefits of mental health services and supports.
Barriers to implementation
Thus far, Virginia’s legislative amendments seem to have been counterproductive. Use of mandatory outpatient treatment has decreased substantially since these laws took effect.
Community services boards are not inclined to recommend outpatient treatment, given their limited resources, increased accountability, and the extensive list of responsibilities required to coordinate and monitor outpatient treatment plans.
Compliance with individual treatment plans is also inconsistent, and local boards are limited in their ability to impose any consequences and enforce participation.
Special justices often view the system as complex and burdensome, and are reluctant to order outpatient treatment, particularly given the limited availability of mental and behavioral health providers and services in the community. The criteria to qualify for outpatient treatment also limits its use, given its similarities to inpatient admission standards and its stipulations for post-discharge treatment eligibility.
Advocating for outpatient care
The success of Virginia’s outpatient treatment system hinges on having an infrastructure to support it and available services to make it work. At the heart of this system are mentally ill individuals and their families who can benefit from outpatient treatment, either instead of or in addition to inpatient hospitalization. While Virginia has made progress toward a system that promotes outpatient mental health care, at this time mandatory outpatient treatment is rarely used by courts to monitor, protect and support individuals suffering from mental illness.
Attorneys have many opportunities to improve this system’s effectiveness and educate others on the profound impact outpatient treatment can have on an individual’s quality of life. We can also take part in and encourage collaboration between community services boards, health care professionals, and the courts to increase the availability and use of outpatient treatment.
Mandatory outpatient treatment is an area of the law that is all too often underutilized and misunderstood. Our clients should be able to rely on us for guidance and knowledge concerning how this system works and how it can help their families.
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