A paper sign hung on the front doors to the Bronx Psychiatric Center. The doors are locked on Wednesdays while court is in session, it read.
Getting inside this courtroom isn’t easy. Two guards unlocked a series of doors which led to a small waiting room where people from a variety of nearby hospitals sat in silence. At the end of the room was one final door, with black paper taped over its window, obscuring what was on the other side.
Court was in session, former Bronx district attorney Robert Johnson was presiding.
There are a handful of courts like this one, in New York State: small, makeshift courtrooms in hospitals and health care institutions. There is no official name for these courts, they fall under the Mental Hygiene Law section of the Supreme Court. In theory, this court is open to the public. In practice, only those who have to be there are in attendance.
Every Wednesday, a judge hears cases under the Mental Hygiene Law Article 9. Simply put, the court presides over cases in which the hospital wants to keep mental health patients hospitalized against their will, or require patients to comply with treatment if they are being discharged.
On this Wednesday, Kimberly Tate-Brown, was the attorney assigned by the state to represent the respondents–the people with mental illness. Mr. L, (only the initials of the respondents are being used to respect their privacy) was one of her clients. On the other side of the aisle was the hospital’s lawyer.
Mr. L, who is 45 but looks older, shuffled across the small courtroom to his seat. He had a large growth on the back of his head, the remains of an injury he refused to treat. Mr. L had refused court mandated medical treatment, known as Assisted Outpatient Treatment (AOT). The hospital was fighting to force him, legally, to take his medication.
Mr. L muttered. He told the judge he wanted to represent himself.
“What’s your education level?” Johnson asked.
“PhD,” Mr. L said.
“In what?” Johnson asked. He leaned forward as Mr. L shifted in his chair.
“Social science,” said Mr. L.
“I want a fair hearing,” said Johnson. The hospital has a lawyer, he reminded Mr. L and spoke of Tate-Brown’s extensive experience as an attorney. “I think it’s to your benefit.”
Reluctantly, Mr. L agreed to let Tate-Brown be his co-counsel.
The proceedings in these cases are simple. The doctor testifies, the patient testifies. Occasionally a family member will testify.
Mr. L’s doctor testified his patient had chronic schizophrenia and delusions the hospital was trying to poison him.
Mr. L tried to interrupt. He mumbled half-hearted objections, shook his head and looked down. Tate-Brown tried to keep Mr. L calm. Her job is part attorney, part care worker. She’s been working as a mental health lawyer for 12 years. Originally from New Hampshire, her background was as a nurse and then as a psychiatric nurse practitioner. She went to law school and learned about these specialized legal services.
“This is perfect, it’s a combination of my nursing background, my psych background,” she said. “Immediately, I knew it was something I wanted to do.”
There is a high risk of non-compliance in the Bronx. Dr Lizica Troneci, Chair of the Department of Psychiatry at St. Barnabas Hospital, said that out of her patients, maybe 30% have family support. The rest do not. Some live in shelters. There’s a significant problem in the Bronx of revolving door hospitalizations and the non-compliance will often make the illness worse, Troneci said.
When Mr. L testified, he rambled. He said he was not mentally ill and complained that his civil rights were being violated. He waved a photocopy of his driver license, which he believed, demonstrated his ability to be responsible for himself.
Mr. L was adamant the judge see the copy of his driver license. Tate-Brown passed the paper to Johnson and he looked it over. She said later that she knew it would make no difference. Since it would not hurt his case, she respected Mr. L’s wish.
The courtroom was informal. Only the judge and lawyers wore suits. There were eight seats on each side of the gallery and many of those present looked at their phones. One hospital lawyer played a game on his phone while he waited for his hearing to begin.
Verdicts weren’t read in front of the respondent. Mr. L was escorted out of the room. Johnson stated that Mr. L was mentally ill and would be a danger to himself. The hospital had succeeded in its petition and Mr. L was forced by law to comply with treatment and take his medication. If he fails to comply, he could be brought back to the hospital and end up in the same court. The court could at that point, force him to stay in the hospital.
The success rate of hospitals in New York City and State for AOTs petitioned, is 95% since it began in 1999, according to the Office of Mental Health. In other words, the court almost always rules in the hospital’s favor when mandating treatment.
It’s difficult when clients are not well, but don’t want treatment, Tate-Brown said. But she has to respect their wishes when she represents them, she said.
“I’m not making the decision,” she said. They are entitled to due process. If Mr. L wants to show his driver license then he has a right to do that, she said.
Much of Tate-Brown’s job is ensuring people like Mr. L get a fair trial and that the hospital sufficiently makes its case.
Before the case goes to court Tate-Brown talks with doctors to determine whether it is necessary to go the legal route. Doctors, she said, fear lawsuits. They don’t want to be the ones who put someone dangerous back on the streets. Sometimes she can persuade the doctor that court isn’t necessary. But the law mandates that anyone suffering from mental illness who has been hospitalized at least twice within 36 months must go through Article 9 of the Mental Hygiene Law. Sometimes, the hospital is getting ready to let the patient go when the patient petitions for a release.
It wasn’t always this way. In 1999, Andrew Goldstein, a mentally ill man, pushed a young woman, Kendra Webdale in front of an oncoming subway train in Manhattan, killing her. He had been hospitalized multiple times and criticism grew around the failure of the mental health system to recognize Goldstein as a threat. Up until this point, if a person was hospitalized for mental illness and medical non-compliance, they would be discharged without much accountability.
Webdale’s death prompted the introduction of Kendra’s Law, otherwise known as Assisted Outpatient Treatment. Almost all states now have AOT. More than 16,000 people in New York City have been given court orders for their treatment since 1999.
The law was criticized from the beginning. Many claimed forcing a person to stay in hospital or take medication was a breach of civil rights. History has not been kind to the medical world when people have been forced into treatment in error. The ice-pick lobotomies and electroshock therapy that were in practice in the U.S. and western Europe well into the 20th century as a cure for homosexuality, as an extreme example, seem barbaric through today’s lens. But the dilemma is clear: how does the court balance the rights of the individual and protect society at large?
That’s why Tate-Brown’s job is critical, she said.
She also represented Mr. Br, 32, who was diagnosed with schizoaffective disorder.
Mr. Br sat quietly as he listened to his doctor’s testimony.
The doctor claimed Mr. Br had been difficult, describing his “hyper-religious behavior.” He was “screaming about God without making sense,” the doctor said.
Mr. Br had been abusing PCP. But when he was discharged, he was “pleasant and apologized for what he did,” according to the doctor.
Mr. Br’s mother also testified. She said her son cared for her in the evenings. She wasn’t aware of the conditions under which he had been hospitalized.
“We will manage at home,” she said when asked if she would make sure Mr. Br takes his medication.
When Mr. Br testified, he was calm.
“I’m not depressed,” he said. “I’m fine.”
The medication makes him “flip,” he said. Mr. Br explained that he had been hospitalized because, while on the way to a job interview, he stopped to do push ups in front of a church.
“I wasn’t jumping up and down.”
If a person is acting strangely due to drug abuse, the hospital doesn’t have the right to hold them on the basis of mental illness. But once someone is labelled mentally ill, it’s often difficult for them to prove their sanity. The first judge is often the person on the street who calls the ambulance or police, the second is the doctor who evaluates the condition, and third is the court judge.
In Tate-Brown’s opinion, the judges on retention cases, when the hospital is arguing to force the respondent to stay in hospital, get it wrong about a third of the time. It is easy to imagine that the doctor’s testimony would be given more weight than the respondent’s, whose testimony is prone to be met with skepticism, she said.
There was an instance, Tate-Brown remembered, when a woman claimed her son was hiding her medication. She was not believed. It turned out to be true.
In Mr. Br’s case, the hospital did not make a convincing argument there was a threat of “imminent harm,” (a criteria for these cases). The hospital had not argued sufficiently that his behavior was caused by mental illness. Mr. Br was granted release.
A court mandated treatment will not work well if the individual is reluctant, Tate-Brown said.
“If the person doesn’t agree with it and it’s imposed upon them,” she said, “what good is it going to do?”
The court actually has the discretion to begin with a voluntary agreement, then if the patient fails to comply with that, they can resort to court mandated treatment.
Tate-Brown said it’s more typical in New York City for the court order to come first.
“To me it’s ass backwards going for a court order first and then stepping people down to a voluntary if they’re willing to agree.”
Harvey Rosenthal, Executive Director for the New York Association of Psychiatric Rehabilitation Services, agreed that forcing someone who is mentally ill to comply with treatment, isn’t always the answer.
If it’s just the same treatment that hasn’t worked, simply forcing them won’t make it better, Rosenthal said.
“Coercion has no magic to it, ” he said.
More than a civil rights issue, Rosenthal believes the issue is the right to the best care and a court order has become a default. He believes in building trust. If something doesn’t work send another care worker, try something different. Often, he said, it’s a matter of paying attention to a lack of food, money or representation. While there may be 16,217 AOT court orders in New York City since 1999, he pointed out, there have been 19,261 cases of voluntary alternatives, instances in which the patient signs a voluntary agreement.
“Would coercion make the difference?” he asked. It’s an empty promise.
Another respondent, Mr. Bl, knew treatment was right for him and had no intention of fighting the AOT in court. He had been hospitalized four times since the beginning of the year, but most were voluntary hospitalizations. Because the court does not distinguish between self hospitalizations and other other kinds, he has to go to court simply in order to agree to something he was already willing to do.
Mr. Bl goes to the hospital for rest sometimes, he said. The judge asked where he would stay if he were let out of the hospital. He said he couldn’t go home because he was fighting an eviction. He was waiting for his benefits to come through before he could move home. Once he’s discharged from the hospital, he said, he’ll stay in a shelter.