Hochul plan to increase commitments of mentally ill raises specters of the past

ALBANY — Gov. Kathy Hochul has proposed allowing police to take into custody people suspected of being mentally ill without requiring evidence of "imminent risk or recent overt acts" in response to recent violence in New York City’s subways.

The goal is to get more people who are experiencing mental health emergencies into psychiatric hospitals and outpatient care. However, advocates for the mentally ill said they fear the proposal is a step toward the failed institutionalization strategy of decades ago, when people were rounded up off the streets, denied their constitutional rights and forced into care in crowded asylums.

Hochul finds herself at the crossroads of two of her top priorities: mental health care and public safety.

Her proposal would be a sea change in how police and courts can deal with people suspected of being mentally ill. A spike in high-profile crimes, including the death of a woman set on fire on a subway train in December, is fueling the public’s fear of what they see as a rise in crime. Polls reflect this fear has been a potent political issue that has hurt Democrats in recent elections.

Hochul said her proposal, soon to be brought to the State Legislature, is intended to "stop the chaos" and make New Yorkers feel safer, but also to improve the system of providing mental health care to people in serious need before some of them erupt into violence.

"Many of these horrific incidents have involved people with serious untreated mental illness, the result of a failure to get treatment to people who are living on the streets and are disconnected from our mental health care system," Hochul told reporters in January. "We have a duty to protect the public from random acts of violence, and the only fair and compassionate thing to do is to get our fellow New Yorkers the help they need."

Involuntary commitment

Hochul proposes to expand the involuntary commitment law that empowers police and courts to order people suspected of having a mental health crisis into psychiatric hospitals. She also would expand a program under Kendra’s Law that can be used to require seriously mentally ill people to participate in outpatient care or face involuntary hospitalization. 

Advocates for the mentally ill have widely credited Hochul as a national leader in her focus on mental health. That effort has included adding more than $1 billion to mental health services over three years, $18.5 million more in funding to support outpatient care, and new programs such as ones for youths, schools and families. Her new proposal also contains measures advocates and academic researchers applaud, including improved coordination between hospitals and outpatient services when a patient is discharged as well as more funding and peer counseling.

However, many operators of mental health programs and advocates fear Hochul’s call to expand mandatory hospitalizations and care would be too broad, unnecessarily hurting many mentally ill people and failing to deal with the small slice of people who need to be forced into hospitals or care. They also say the state still has too few psychiatric beds — many of which were converted for COVID-19 patients during the pandemic — and staff to handle an influx of psychiatric patients.

Expanding involuntary care, which is also being considered in several other states, such as California and Vermont, raises the specter of widespread forced hospitalization of  those suspected of being mentally ill in the 1960s that had forced 500,000 Americans into hospitals. Beginning in the 1970s, news reports and advocates revealed inhumane treatment amid squalor in the overcrowded psychiatric asylums, and those facilities were closed beginning in the 1970s. One of the most infamous was Willowbrook State School in Staten Island, which held 6,000 youths in deplorable conditions.

After Willowbrook, governments moved to "deinstitutionalization," which emptied psychiatric hospitals around the state and nation. Care was to be replaced by more community-based services in supportive, government-subsidized housing or by out-treatment.

But advocates have called deinstitutionalization a broken, underfunded promise.

"It is exactly a return to institutionalization," said Ruth Lowenkron, director of disability justice at New York Lawyers for the Public Interest, in an interview, referring to Hochul's proposals. The nonprofit law firm advocates for civil rights. Involuntary care "is only a matter of last resort — if there is no other way."

"I will grant that it is not likely to return" to asylums, she said, "but short of that, it is absolutely a return to the days of yore that did not work."

Expanding criteria

Currently, under the involuntary commitment law police can detain a person in what they deem an emergency, after confirmation from medical reviews, for up to 15 days. The commitment can be based on the officers’ evaluation that there is a "reasonable cause" to believe the person requires immediate observation by health care professionals in a hospital and "is likely to result in serious harm to him/herself or others."

Hochul would broaden the criteria. A person, such as a homeless individual, could be hospitalized without consent "when individuals are at substantial risk of harm due to their inability to meet basic needs like food, shelter, or medical care," according to a document released with her State of the State speech Jan. 14.

Under her proposal, "evidence of imminent risk or recent overt acts is not required."

The proposal would give the force of law to guidance the state Office of Mental Health sent to public health providers in a 2022 directive. The guidance states that police may take someone into custody for a psychiatric examination if persons "appear to be mentally ill ... even when there is no recent dangerous act."

Hochul’s proposal also would allow clinicians to consider additional factors to determine a likelihood of serious harm, including a person’s medical and behavioral history "and other relevant sources," according to Hochul spokesman Avery Cohen.

Hochul’s proposals have mirrored the concerns of some Republicans in the State Legislature.

"I think it’s a step in the right direction," said Assembly Republican leader Will Barclay, of Pulaski. "It’s wrong to think of this as a punitive measure. It’s not. It gets people who need care off the streets and the subway."

"Obviously there are some concerns about due process and how it will affect those who aren’t violent," Barclay said. "We can balance that against community safety."

Improving care

The National Alliance on Mental Illness New York State, which advocates for individuals and families impacted by mental illness, said many elements of Hochul's plan will improve care.

Nathan McLaughlin, executive director of NAMI NYS, said in testimony at a budget hearing this month that it would seek to "fix a broken system by modernizing and streamlining the process along with introducing greater utilization of mental health professionals." 

"The leading challenge is that for many, their serious mental illness prevents them from recognizing their symptoms and/or having insight on their illness," he said.

Some advocates, however, warn damage could mount quickly under Hochul's proposal.

"We are deeply troubled about proposals to significantly increase the use of involuntary hospitalization and outpatient services mandates," said Harvey Rosenthal, CEO of the Alliance for Rights and Recovery. "These polices single out, scapegoat and sweep away the rights and dignity of our neighbors with mental illness. 

"Using more involuntary commitments, expanding it the way it is, fails on many counts," Rosenthal said. "It drives people away rather than drive them to care."

Researchers see the trend, and the concern on both sides of the issue, nationally.

"The proposal is like déjà vu all over again," said Jeffrey Swanson, a professor of psychiatry and behavioral sciences at Duke University School of Medicine in Durham, North Carolina. "This could be 30, 40 years ago."

"There has been a trend away from the ‘imminent danger’ standard, where it’s a really high bar," he said in an interview. 

But it’s that public fear that moves policy, he said. "I think John Q. Public probably cares more about safety on the streets or subway rather than the well-being of the mentally ill," Swanson said.

Legal objections

The New York City Bar Association in a 2023 hearing raised constitutional objections to a pilot program in the city that was like Hochul’s proposal. The bar cited a U.S. Supreme Court decision that stated a "state cannot constitutionally confine, without more, a non-dangerous individual who is capable of surviving safety in freedom by himself or with the help of willing and responsible family members or friends." The decision also said "mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty."

Academic and government studies show that few mentally ill people commit crimes, but underlying issues such as addiction trigger actions often blamed on mental illness.

"Although mental illness is associated with an increased risk of violence, epidemiologic data show that only a small proportion of violence in our society — best estimate: 3-5% — is causally related to mental illness," said Dr. Paul S. Appelbaum, professor of psychiatry, medicine and law at Columbia University. "So even if we were able to predict and prevent it all — which we are not able to do — we’d still be left with 95% or more of the violence we experience."

"A more effective path to reducing the burden of mental illness — including homelessness and arrests for criminal offenses — is to improve the availability and scope of clinical and support services," Appelbaum told Newsday in an emailed response.

The governor's proposal is part of her budget submitted to the legislature. Under the state constitution, governors have greater leverage in negotiating policy when a proposal is part of budget talks with legislative leaders.

"What’s animating the governor’s proposal comes from a good place," said Swanson, the Duke researcher.

"There is a time and place for some people where involuntary hospitalization is necessary and can be helpful," Swanson said. "It can also be a traumatic experience for people. We have to do everything we can to limit those coercive crisis interventions such as transporting people to a hospital in a police cruiser in handcuffs."

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.