N.Y. Mental Hygiene Law § 9.60: Assisted outpatient treatment

* § 9.60 Assisted outpatient treatment.

(a) Definitions. For purposes of this section, the following

definitions shall apply:

(1) "assisted outpatient treatment" shall mean categories of

outpatient services which have been ordered by the court pursuant to

this section. Such treatment shall include case management services or

assertive community treatment team services to provide care

coordination, and may also include any of the following categories of

services: medication; periodic blood tests or urinalysis to determine

compliance with prescribed medications; individual or group therapy; day

or partial day programming activities; educational and vocational

training or activities; alcohol or substance abuse treatment and

counseling and periodic tests for the presence of alcohol or illegal

drugs for persons with a history of alcohol or substance abuse;

supervision of living arrangements; and any other services within a

local services plan developed pursuant to article forty-one of this

chapter, prescribed to treat the person's mental illness and to assist

the person in living and functioning in the community, or to attempt to

prevent a relapse or deterioration that may reasonably be predicted to

result in suicide or the need for hospitalization.

(2) "director" shall mean the director of community services of a

local governmental unit, or the director of a hospital licensed or

operated by the office of mental health which operates, directs and

supervises an assisted outpatient treatment program.

(3) "director of community services" and "local governmental unit"

shall have the same meanings as provided in article forty-one of this

chapter. The "appropriate director" shall mean the director of community

services of the county where the assisted outpatient resides, even if it

is a different county than the county where the assisted outpatient

treatment order was originally issued.

(4) "assisted outpatient treatment program" shall mean a system to

arrange for and coordinate the provision of assisted outpatient

treatment, to monitor treatment compliance by assisted outpatients, to

evaluate the condition or needs of assisted outpatients, to take

appropriate steps to address the needs of such individuals, and to

ensure compliance with court orders.

(5) "assisted outpatient" shall mean the person under a court order to

receive assisted outpatient treatment.

(6) "subject of the petition" or "subject" shall mean the person who

is alleged in a petition, filed pursuant to the provisions of this

section, to meet the criteria for assisted outpatient treatment.

(7) "correctional facility" and "local correctional facility" shall

have the same meanings as provided in section two of the correction law.

(8) "health care proxy" and "health care agent" shall have the same

meanings as provided in article twenty-nine-C of the public health law.

(9) "program coordinator" shall mean an individual appointed by the

commissioner of mental health, pursuant to subdivision (f) of section

7.17 of this chapter, who is responsible for the oversight and

monitoring of assisted outpatient treatment programs.

(b) Programs. The director of community services of each local

governmental unit shall operate, direct and supervise an assisted

outpatient treatment program. The director of a hospital licensed or

operated by the office of mental health may operate, direct and

supervise an assisted outpatient treatment program, upon approval by the

commissioner. Directors of community services shall be permitted to

satisfy the provisions of this subdivision through the operation of

joint assisted outpatient treatment programs. Nothing in this

subdivision shall be interpreted to preclude the combination or

coordination of efforts between and among local governmental units and

hospitals in providing and coordinating assisted outpatient treatment.

(c) Criteria. A person may be ordered to receive assisted outpatient

treatment if the court finds that such person:

(1) is eighteen years of age or older; and

(2) is suffering from a mental illness; and

(3) is unlikely to survive safely in the community without

supervision, based on a clinical determination; and

(4) has a history of lack of compliance with treatment for mental

illness that has:

(i) except as otherwise provided in subparagraph (iii) of this

paragraph, prior to the filing of the petition, at least twice within

the last thirty-six months been a significant factor in necessitating

hospitalization in a hospital, or receipt of services in a forensic or

other mental health unit of a correctional facility or a local

correctional facility, not including any current period, or period

ending within the last six months, during which the person was or is

hospitalized or incarcerated; or

(ii) except as otherwise provided in subparagraph (iii) of this

paragraph, prior to the filing of the petition, resulted in one or more

acts of serious violent behavior toward self or others or threats of, or

attempts at, serious physical harm to self or others within the last

forty-eight months, not including any current period, or period ending

within the last six months, in which the person was or is hospitalized

or incarcerated; or

(iii) notwithstanding subparagraphs (i) and (ii) of this paragraph,

resulted in the issuance of a court order for assisted outpatient

treatment that has expired within the last six months, and since the

expiration of the order; (a) the person has experienced a substantial

increase in symptoms of mental illness that substantially interferes

with or limits the person's ability to comply with recommended

treatment; or (b) the person, due to a lack of compliance with

recommended treatment, has undergone emergency observation, care, and

treatment or has been admitted for inpatient care or has been

incarcerated;

(5) is, as a result of his or her mental illness, unlikely to

voluntarily participate in outpatient treatment that would enable him or

her to live safely in the community; and

(6) in view of his or her treatment history and current behavior, is

in need of assisted outpatient treatment in order to prevent a relapse

or deterioration which would be likely to result in serious harm to the

person or others as defined in section 9.01 of this article; and

(7) is likely to benefit from assisted outpatient treatment. Previous

non-compliance with court oversight or mandated treatment shall not

preclude a finding that the person is likely to benefit from assisted

outpatient treatment.

(d) Health care proxy. Nothing in this section shall preclude a person

with a health care proxy from being subject to a petition pursuant to

this chapter and consistent with article twenty-nine-C of the public

health law.

(e) Petition to the court. (1) A petition for an order authorizing

assisted outpatient treatment may be filed in the supreme or county

court in the county in which the subject of the petition is present or

reasonably believed to be present. Such petition may be initiated only

by the following persons:

(i) any person eighteen years of age or older with whom the subject of

the petition resides; or

(ii) the parent, spouse, domestic partner, sibling eighteen years of

age or older, or child eighteen years of age or older of the subject of

the petition; or

(iii) the director of a hospital in which the subject of the petition

is hospitalized; or

(iv) the director of any public or charitable organization, agency or

home providing mental health services to the subject of the petition or

in whose institution the subject of the petition resides; or

(v) a qualified psychiatrist who is either supervising the treatment

of or treating the subject of the petition for a mental illness; or

(vi) a psychologist, licensed pursuant to article one hundred

fifty-three of the education law, or a social worker, licensed pursuant

to article one hundred fifty-four of the education law, who is treating

the subject of the petition for a mental illness; or

(vii) the director of community services, or his or her designee, or

the social services official, as defined in the social services law, of

the city or county in which the subject of the petition is present or

reasonably believed to be present; or

(viii) a parole officer or probation officer assigned to supervise the

subject of the petition.

(2) The petition shall state:

(i) each of the criteria for assisted outpatient treatment as set

forth in subdivision (c) of this section;

(ii) facts which support the petitioner's belief that the subject of

the petition meets each criterion, provided that the hearing on the

petition need not be limited to the stated facts; and

(iii) that the subject of the petition is present, or is reasonably

believed to be present, within the county where such petition is filed.

(3) The petition shall be accompanied by an affirmation or affidavit

of a physician, who shall not be the petitioner, stating either that:

(i) such physician has personally examined the subject of the petition

no more than ten days prior to the submission of the petition,

recommends assisted outpatient treatment for the subject of the

petition, and is willing and able to testify at the hearing on the

petition; or

(ii) no more than ten days prior to the filing of the petition, such

physician or his or her designee has made appropriate attempts but has

not been successful in eliciting the cooperation of the subject of the

petition to submit to an examination, such physician has reason to

suspect that the subject of the petition meets the criteria for assisted

outpatient treatment, and such physician is willing and able to examine

the subject of the petition and testify at the hearing on the petition.

(4) In counties with a population of less than eighty thousand, the

affirmation or affidavit required by paragraph three of this subdivision

may be made by a physician who is an employee of the office. The office

is authorized to make available, at no cost to the county, a qualified

physician for the purpose of making such affirmation or affidavit

consistent with the provisions of such paragraph.

(f) Service. The petitioner shall cause written notice of the petition

to be given to the subject of the petition and a copy thereof to be

given personally or by mail to the persons listed in section 9.29 of

this article, the mental hygiene legal service, the health care agent if

any such agent is known to the petitioner, the appropriate program

coordinator, and the appropriate director of community services, if such

director is not the petitioner.

(g) Right to counsel. The subject of the petition shall have the right

to be represented by the mental hygiene legal service, or privately

financed counsel, at all stages of a proceeding commenced under this

section.

(h) Hearing. (1) Upon receipt of the petition, the court shall fix the

date for a hearing. Such date shall be no later than three days from the

date such petition is received by the court, excluding Saturdays,

Sundays and holidays. Adjournments shall be permitted only for good

cause shown. In granting adjournments, the court shall consider the need

for further examination by a physician or the potential need to provide

assisted outpatient treatment expeditiously. The court shall cause the

subject of the petition, any other person receiving notice pursuant to

subdivision (f) of this section, the petitioner, the physician whose

affirmation or affidavit accompanied the petition, and such other

persons as the court may determine to be advised of such date. Upon such

date, or upon such other date to which the proceeding may be adjourned,

the court shall hear testimony and, if it be deemed advisable and the

subject of the petition is available, examine the subject of the

petition in or out of court. If the subject of the petition does not

appear at the hearing, and appropriate attempts to elicit the attendance

of the subject have failed, the court may conduct the hearing in the

subject's absence. In such case, the court shall set forth the factual

basis for conducting the hearing without the presence of the subject of

the petition.

(2) The court shall not order assisted outpatient treatment unless an

examining physician, who recommends assisted outpatient treatment and

has personally examined the subject of the petition no more than ten

days before the filing of the petition, testifies in person or by

videoconference at the hearing. Provided however, a physician shall only

be authorized to testify by video conference when it has been: (i) shown

that diligent efforts have been made to attend such hearing in person

and the subject of the petition consents to the physician testifying by

video conference; or (ii) the court orders the physician to testify by

video conference upon a finding of good cause. Such physician shall

state the facts and clinical determinations which support the allegation

that the subject of the petition meets each of the criteria for assisted

outpatient treatment.

(3) If the subject of the petition has refused to be examined by a

physician, the court may request the subject to consent to an

examination by a physician appointed by the court. If the subject of the

petition does not consent and the court finds reasonable cause to

believe that the allegations in the petition are true, the court may

order peace officers, acting pursuant to their special duties, or police

officers who are members of an authorized police department or force, or

of a sheriff's department to take the subject of the petition into

custody and transport him or her to a hospital for examination by a

physician. Retention of the subject of the petition under such order

shall not exceed twenty-four hours. The examination of the subject of

the petition may be performed by the physician whose affirmation or

affidavit accompanied the petition pursuant to paragraph three of

subdivision (e) of this section, if such physician is privileged by such

hospital or otherwise authorized by such hospital to do so. If such

examination is performed by another physician, the examining physician

may consult with the physician whose affirmation or affidavit

accompanied the petition as to whether the subject meets the criteria

for assisted outpatient treatment.

(4) A physician who testifies pursuant to paragraph two of this

subdivision shall state: (i) the facts which support the allegation that

the subject meets each of the criteria for assisted outpatient

treatment, (ii) that the treatment is the least restrictive alternative,

(iii) the recommended assisted outpatient treatment, and (iv) the

rationale for the recommended assisted outpatient treatment. If the

recommended assisted outpatient treatment includes medication, such

physician's testimony shall describe the types or classes of medication

which should be authorized, shall describe the beneficial and

detrimental physical and mental effects of such medication, and shall

recommend whether such medication should be self-administered or

administered by authorized personnel.

(5) The subject of the petition shall be afforded an opportunity to

present evidence, to call witnesses on his or her behalf, and to

cross-examine adverse witnesses.

(i) Written treatment plan. (1) The court shall not order assisted

outpatient treatment unless a physician appointed by the appropriate

director, in consultation with such director, develops and provides to

the court a proposed written treatment plan. The written treatment plan

shall include case management services or assertive community treatment

team services to provide care coordination. The written treatment plan

also shall include all categories of services, as set forth in paragraph

one of subdivision (a) of this section, which such physician recommends

that the subject of the petition receive. All service providers shall be

notified regarding their inclusion in the written treatment plan. If the

written treatment plan includes medication, it shall state whether such

medication should be self-administered or administered by authorized

personnel, and shall specify type and dosage range of medication most

likely to provide maximum benefit for the subject. If the written

treatment plan includes alcohol or substance abuse counseling and

treatment, such plan may include a provision requiring relevant testing

for either alcohol or illegal substances provided the physician's

clinical basis for recommending such plan provides sufficient facts for

the court to find (i) that such person has a history of alcohol or

substance abuse that is clinically related to the mental illness; and

(ii) that such testing is necessary to prevent a relapse or

deterioration which would be likely to result in serious harm to the

person or others. If a director is the petitioner, the written treatment

plan shall be provided to the court no later than the date of the

hearing on the petition. If a person other than a director is the

petitioner, such plan shall be provided to the court no later than the

date set by the court pursuant to paragraph three of subdivision (j) of

this section.

(2) The physician appointed to develop the written treatment plan

shall provide the following persons with an opportunity to actively

participate in the development of such plan: the subject of the

petition; the treating physician, if any; and upon the request of the

subject of the petition, an individual significant to the subject

including any relative, close friend or individual otherwise concerned

with the welfare of the subject. If the subject of the petition has

executed a health care proxy, the appointed physician shall consider any

directions included in such proxy in developing the written treatment

plan.

(3) The court shall not order assisted outpatient treatment unless a

physician appearing on behalf of a director testifies to explain the

written proposed treatment plan. Such physician shall state the

categories of assisted outpatient treatment recommended, the rationale

for each such category, facts which establish that such treatment is the

least restrictive alternative, and, if the recommended assisted

outpatient treatment plan includes medication, such physician shall

state the types or classes of medication recommended, the beneficial and

detrimental physical and mental effects of such medication, and whether

such medication should be self-administered or administered by an

authorized professional. If the subject of the petition has executed a

health care proxy, such physician shall state the consideration given to

any directions included in such proxy in developing the written

treatment plan. If a director is the petitioner, testimony pursuant to

this paragraph shall be given at the hearing on the petition. If a

person other than a director is the petitioner, such testimony shall be

given on the date set by the court pursuant to paragraph three of

subdivision (j) of this section.

(j) Disposition. (1) If after hearing all relevant evidence, the court

does not find by clear and convincing evidence that the subject of the

petition meets the criteria for assisted outpatient treatment, the court

shall dismiss the petition.

(2) If after hearing all relevant evidence, the court finds by clear

and convincing evidence that the subject of the petition meets the

criteria for assisted outpatient treatment, and there is no appropriate

and feasible less restrictive alternative, the court may order the

subject to receive assisted outpatient treatment for an initial period

not to exceed one year. In fashioning the order, the court shall

specifically make findings by clear and convincing evidence that the

proposed treatment is the least restrictive treatment appropriate and

feasible for the subject. The order shall state an assisted outpatient

treatment plan, which shall include all categories of assisted

outpatient treatment, as set forth in paragraph one of subdivision (a)

of this section, which the assisted outpatient is to receive, but shall

not include any such category that has not been recommended in both the

proposed written treatment plan and the testimony provided to the court

pursuant to subdivision (i) of this section.

(3) If after hearing all relevant evidence presented by a petitioner

who is not a director, the court finds by clear and convincing evidence

that the subject of the petition meets the criteria for assisted

outpatient treatment, and the court has yet to be provided with a

written proposed treatment plan and testimony pursuant to subdivision

(i) of this section, the court shall order the appropriate director to

provide the court with such plan and testimony no later than the third

day, excluding Saturdays, Sundays and holidays, immediately following

the date of such order. Upon receiving such plan and testimony, the

court may order assisted outpatient treatment as provided in paragraph

two of this subdivision.

(4) A court may order the patient to self-administer psychotropic

drugs or accept the administration of such drugs by authorized personnel

as part of an assisted outpatient treatment program. Such order may

specify the type and dosage range of such psychotropic drugs and such

order shall be effective for the duration of such assisted outpatient

treatment.

(5) If the petitioner is the director of a hospital that operates an

assisted outpatient treatment program, the court order shall direct the

hospital director to provide or arrange for all categories of assisted

outpatient treatment for the assisted outpatient throughout the period

of the order. In all other instances, the order shall require the

appropriate director, as that term is defined in this section, to

provide or arrange for all categories of assisted outpatient treatment

for the assisted outpatient throughout the period of the order.

(6) The director shall cause a copy of any court order issued pursuant

to this section to be served personally, or by mail, facsimile or

electronic means, upon the assisted outpatient, the mental hygiene legal

service or anyone acting on the assisted outpatient's behalf, the

original petitioner, identified service providers, and all others

entitled to notice under subdivision (f) of this section.

(k) Petition for additional periods of treatment. (1) Prior to the

expiration of an order pursuant to this section, the appropriate

director shall review whether the assisted outpatient continues to meet

the criteria for assisted outpatient treatment. If, as documented in the

petition, the director determines that such criteria continue to be met

or has made appropriate attempts to, but has not been successful in

eliciting, the cooperation of the subject to submit to an examination,

within thirty days prior to the expiration of an order of assisted

outpatient treatment, such director may petition the court to order

continued assisted outpatient treatment pursuant to paragraph two of

this subdivision. Upon determining whether such criteria continue to be

met, such director shall notify the program coordinator in writing as to

whether a petition for continued assisted outpatient treatment is

warranted and whether such a petition was or will be filed.

(2) Within thirty days prior to the expiration of an order of assisted

outpatient treatment, the appropriate director or the current

petitioner, if the current petition was filed pursuant to subparagraph

(i) or (ii) of paragraph one of subdivision (e) of this section, and the

current petitioner retains his or her original status pursuant to the

applicable subparagraph, may petition the court to order continued

assisted outpatient treatment for a period not to exceed one year from

the expiration date of the current order. If the court's disposition of

such petition does not occur prior to the expiration date of the current

order, the current order shall remain in effect until such disposition.

The procedures for obtaining any order pursuant to this subdivision

shall be in accordance with the provisions of the foregoing subdivisions

of this section; provided that the time restrictions included in

paragraph four of subdivision (c) of this section shall not be

applicable. The notice provisions set forth in paragraph six of

subdivision (j) of this section shall be applicable. Any court order

requiring periodic blood tests or urinalysis for the presence of alcohol

or illegal drugs shall be subject to review after six months by the

physician who developed the written treatment plan or another physician

designated by the director, and such physician shall be authorized to

terminate such blood tests or urinalysis without further action by the

court.

(l) Petition for an order to stay, vacate or modify. (1) In addition

to any other right or remedy available by law with respect to the order

for assisted outpatient treatment, the assisted outpatient, the mental

hygiene legal service, or anyone acting on the assisted outpatient's

behalf may petition the court on notice to the director, the original

petitioner, and all others entitled to notice under subdivision (f) of

this section to stay, vacate or modify the order.

(2) The appropriate director shall petition the court for approval

before instituting a proposed material change in the assisted outpatient

treatment plan, unless such change is authorized by the order of the

court. Such petition shall be filed on notice to all parties entitled to

notice under subdivision (f) of this section. Not later than five days

after receiving such petition, excluding Saturdays, Sundays and

holidays, the court shall hold a hearing on the petition; provided that

if the assisted outpatient informs the court that he or she agrees to

the proposed material change, the court may approve such change without

a hearing. Non-material changes may be instituted by the director

without court approval. For the purposes of this paragraph, a material

change is an addition or deletion of a category of services to or from a

current assisted outpatient treatment plan, or any deviation without the

assisted outpatient's consent from the terms of a current order relating

to the administration of psychotropic drugs.

(m) Appeals. Review of an order issued pursuant to this section shall

be had in like manner as specified in section 9.35 of this article.

(n) Failure to comply with assisted outpatient treatment. Where in the

clinical judgment of a physician, (i) the assisted outpatient, has

failed or refused to comply with the assisted outpatient treatment, (ii)

efforts were made to solicit compliance, and (iii) such assisted

outpatient may be in need of involuntary admission to a hospital

pursuant to section 9.27 of this article or immediate observation, care

and treatment pursuant to section 9.39 or 9.40 of this article, such

physician may request the appropriate director of community services,

the director's designee, or any physician designated by the director of

community services pursuant to section 9.37 of this article, to direct

the removal of such assisted outpatient to an appropriate hospital for

an examination to determine if such person has a mental illness for

which hospitalization is necessary pursuant to section 9.27, 9.39 or

9.40 of this article. Furthermore, if such assisted outpatient refuses

to take medications as required by the court order, or he or she refuses

to take, or fails a blood test, urinalysis, or alcohol or drug test as

required by the court order, such physician may consider such refusal or

failure when determining whether the assisted outpatient is in need of

an examination to determine whether he or she has a mental illness for

which hospitalization is necessary. Upon the request of such physician,

the appropriate director, the director's designee, or any physician

designated pursuant to section 9.37 of this article, may direct peace

officers, acting pursuant to their special duties, or police officers

who are members of an authorized police department or force or of a

sheriff's department to take the assisted outpatient into custody and

transport him or her to the hospital operating the assisted outpatient

treatment program or to any hospital authorized by the director of

community services to receive such persons. Such law enforcement

officials shall carry out such directive. Upon the request of such

physician, the appropriate director, the director's designee, or any

physician designated pursuant to section 9.37 of this article, an

ambulance service, as defined by subdivision two of section three

thousand one of the public health law, or an approved mobile crisis

outreach team as defined in section 9.58 of this article shall be

authorized to take into custody and transport any such person to the

hospital operating the assisted outpatient treatment program, or to any

other hospital authorized by the appropriate director of community

services to receive such persons. Any director of community services, or

designee, shall be authorized to direct the removal of an assisted

outpatient who is present in his or her county to an appropriate

hospital, in accordance with the provisions of this subdivision, based

upon a determination of the appropriate director of community services

directing the removal of such assisted outpatient pursuant to this

subdivision. Such person may be retained for observation, care and

treatment and further examination in the hospital for up to seventy-two

hours to permit a physician to determine whether such person has a

mental illness and is in need of involuntary care and treatment in a

hospital pursuant to the provisions of this article. Any continued

involuntary retention in such hospital beyond the initial seventy-two

hour period shall be in accordance with the provisions of this article

relating to the involuntary admission and retention of a person. If at

any time during the seventy-two hour period the person is determined not

to meet the involuntary admission and retention provisions of this

article, and does not agree to stay in the hospital as a voluntary or

informal patient, he or she must be released. Failure to comply with an

order of assisted outpatient treatment shall not be grounds for

involuntary civil commitment or a finding of contempt of court.

(o) Effect of determination that a person is in need of assisted

outpatient treatment. The determination by a court that a person is in

need of assisted outpatient treatment shall not be construed as or

deemed to be a determination that such person is incapacitated pursuant

to article eighty-one of this chapter.

(p) False petition. A person making a false statement or providing

false information or false testimony in a petition or hearing under this

section shall be subject to criminal prosecution pursuant to article one

hundred seventy-five or article two hundred ten of the penal law.

(q) Exception. Nothing in this section shall be construed to affect

the ability of the director of a hospital to receive, admit, or retain

patients who otherwise meet the provisions of this article regarding

receipt, retention or admission.

(r) Education and training. (1) The office of mental health, in

consultation with the office of court administration, shall prepare

educational and training materials on the use of this section, which

shall be made available to local governmental units, providers of

services, judges, court personnel, law enforcement officials and the

general public.

(2) The office, in consultation with the office of court

administration, shall establish a mental health training program for

supreme and county court judges and court personnel. Such training shall

focus on the use of this section and generally address issues relating

to mental illness and mental health treatment.

(s) A director of community services or his or her designee may

require a provider of inpatient psychiatric services operated or

licensed by the office of mental health to provide contemporaneous

information, including but not limited to relevant clinical records,

documents, and other information concerning the person receiving

assisted outpatient treatment pursuant to an active assisted outpatient

treatment order, that is deemed necessary by such director or designee

who is required to coordinate and monitor the care of any individual who

was subject to an active assisted outpatient treatment order to appro-

priately discharge their duties pursuant to section 9.47 of this

article, and where such provider of inpatient psychiatric services is

required to disclose such information pursuant to paragraph twelve of

subdivision (c) of section 33.13 of this chapter and such disclosure is

in accordance with all other applicable state and federal

confidentiality laws. None of the records or information obtained by the

director of community services pursuant to this subdivision shall be

public records, and the records shall not be released by the director to

any person or agency, except as already authorized by law.

* NB Repealed June 30, 2027