Critical Issues - Advanced Directives

Mental Hygiene Administration and Office of the Attorney General - December 1, 1999

Introduction and Executive Summary

In April 1999, the Joint Chairmen of the Senate Budget and Taxation Committee and the House Appropriations Committee of the Maryland General Assembly directed the Mental Hygiene Administration (MHA) and the Office of the Attorney General to study the "feasibility and advisability of a pilot project for involuntary outpatient civil commitment or any other measures as determined appropriate" to promote consumer participation in community-based mental health services. The impetus for the study was the Joint Chairmen's observation that "there are individuals in Maryland with serious mental disorder who may not elect to participate in mental health treatment and other services that are believed necessary for these individuals to live safely in the community."

Responsibility for the study was given to the Mental Hygiene Administration's "Workgroup on Outpatient Civil Commitment," established in September 1998 to explore outpatient commitment and other potential initiatives to promote consumer participation in treatment. The Workgroup consisted of representatives of the Mental Hygiene Administration, the Office of the Attorney General, the National Alliance for the Mentally 111, the Judiciary, Johns Hopkins Medical School, University of Maryland Medical School, Maryland Association of Psychiatric Support Services, On Our Own of Maryland, Maryland Council of Community Mental Health Centers, The Mental Health Association of Maryland, Sheppard Pratt Health System, The Maryland Disability Law Center, Baltimore Mental Health Systems, and the Maryland Legislature. The Workgroup met 12 times, examined laws in other states, discussed the pertinent professional literature, and heard from three national experts. The following is a summary of the Workgroup's recommendations:

I. The Mental Hygiene Administration should establish a program to promote the execution and use of advance directives for mental health care (ADMHs) by individuals receiving mental health services in Maryland. The program should include the development of model forms and protocols for ADMHs and training for facility staff and community providers in assisting consumers in the development of ADMHs, consistent with guidance provided by the Office of the Attorney General. Education also should be available for consumers and their families, members of the bench and bar, and other interested persons. The Mental Hygiene administration should seek funding in the amount of $300,000 in year one and $150,000 in years two and three for establishment of the program (e.g., development of protocols, forms, and training) and $350,000 per year over three years for an evaluation of the program's impact on consumer participation in treatment.

II. The Mental Hygiene Administration should establish an initiative to identify and provide "enhanced" community-based services for individuals who are at high risk for repeated hospitalization, homelessness, criminal arrest, or suicide. Coordinated with other MHA efforts to assure the availability of comprehensive services statewide (see DHMH, Final Report to the Joint Chairman: The Statewide Needs Assessment for Mental Health Services and MHA's Five-Year Plan for Downsizing and Consolidating of State Psychiatric Hospitals (July 1999), hereinafter, Needs Assessment 19991, the initiative should include:

  • A mechanism for identifying "high risk" consumers.

  • Allocation of responsibility for monitoring the progress of individuals identified as at high risk and targeted for enhanced services.

  • Development of additional "assertive community treatment" services and consideration of more equitable compensation for providers of these services.

  • Program evaluation to assess the effect of enhanced service delivery on consumer participation in treatment

Many of the services needed to support this initiative are called for in the report, Needs Assessment 1999, cited above. Others, however, are not. To cover the cost of this initiative, MHA should seek increased funding in the amount of 52 million per year.

The Workgroup concluded that legislation for involuntary outpatient civil commitment (IOC) would not be advisable at this time. Whether the law should allow for IOC is highly controversial. Critics charge that IOC:

  • widens the net of social control, threatening the liberties of all people with a mental disorder.

  • poisons the therapeutic relationship (between provider and consumer), driving away voluntary consumers.

  • invites a misallocation of scarce mental health resources by courts unfamiliar with the variety of demands faced by mental health systems.

The literature suggests that IOC, although authorized by law in most states, rarely is used. One reason is that the only means of enforcement - the only effective remedy for noncompliance with an IOC order - is involuntary hospitalization, and involuntary hospitalization is available only if an individual meets inpatient commitment standards. Involuntary hospitalization, of course, may be sought whether or not an individual is under an IOC order. Thus, IOC may offer nothing that is not already available.

Proponents argue that IOC works, despite enforcement problems. What research exists, however, is not so optimistic. The most comprehensive study to date suggests that if adequate mental health services are available in the community, the vast majority of consumers participate successfully, and individuals who are under an IOC order fare no better than those who are not. Thus, it appears it is the availability of appropriate services, not the existence of a court order, that keeps people engaged in treatment. The challenge is to assure the availability of a full complement of mental health services in every community.

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