SANTA FE (KRQE) – Hospitals, jails and the streets.
New Mexico is a three-option state when it comes to solutions for people living with the most severe forms of mental illness and who present a danger to themselves or others.
“New Mexico’s one of the few states where, If you’re ill and you need treatment, (a judge’s) only option is to lock you down in a hospital. Wouldn’t it be fantastic if there was a lesser restrictive option?” said Oscar Kazen, an associate probate judge in Bexar County, Texas.
Kazen told KRQE News 13 in an interview last week that he has presided over exactly that kind of option in his San Antonio district. It’s called an “Assisted Outpatient Treatment” court, commonly referred to as AOT.
He said it has been effective in reducing psychiatric holds at hospitals and the high financial costs to the community that come with constantly treating a small portion of the population in those hospitals and in jails, frequently after run-ins with police. Providing care in jail or prison, Kazen said, is often the most expensive way to do it.
Texas is one of 45 states that have some version of an AOT program. They’re all based on New York’s controversial “Kendra’s Law,” which allows for involuntary outpatient treatment of certain people living with mental illness.
Now, New Mexico state Sen. Mary Kay Papen (D-Las Cruces) and Rep. Paul Pacheco (R-Albuquerque) are sponsoring a bill in the Legislature that would give judges in the state’s 13 judicial districts the authority to establish AOTs. The bill is what’s known as enabling legislation: it allows individual district courts the choice of whether to create an AOT program instead of mandating it.
AOT would create a middle option, supporters say, that would put people who have specific diagnoses of mental illness and a history of not complying with medication regimens under the supervision of a civil court judge. To be eligible, people must also have been jailed or hospitalized at least twice during the previous four years as a result of actions related to the illness or committed “serious acts of violent behavior” toward themselves or others.
Under the proposed law, judges’ prerogative would be to direct specified mental health providers to treat people who meet the criteria and for whom AOT is the least-restrictive treatment option.
Civil liberties groups and some advocates for people living with disabilities object to the proposal, saying it tramples on people’s right to self-determination.
“People have a right to have control over their own body,” said Steven Robert Allen, director of public policy for the American Civil Liberties Union of New Mexico. “Forced medication kind of gets to the core of that.
“We are also concerned that the bill potentially stigmatizes people who are living with mental illness, and that’s another problem.”
The public perception of mental illness is often that it’s a dangerous affliction. But even supporters of the bill say that’s not true. Most people suffering from mental illness, Brian Stettin of the Treatment Advocacy Center said, are at no greater risk for violence than the rest of the population. And what risk there is is often that those with mental illness will hurt themselves.
But the combination of a severe mental disorder and a lack of treatment is another matter.
“That is a group that does present a significant risk for violence,” Stettin said. An attorney by trade, he helped craft the original Kendra’s Law. “We’re really putting our heads in the sand if we don’t acknowledge that and try to address it. The key is getting them into treatment and then you won’t have to worry about violence.”
For families like Bert and Jeane Dugan, the guidance of a judge was what finally made the difference for their son, Ray.
The Dugans told News 13 the story of how their son — who had graduated from college with a degree in English and computer engineering and went on to work as a congressional aide in Washington, D.C. — slowly began to deteriorate in his middle 20s.
Ray began to struggle with his finances, his parents said. On a few occasions, he suddenly cut short his visit to their Michigan home and returned to Virginia after just a few hours with his family. Eventually, he began to hear voices.
“He was being told to do things that he had to do,” Bert Dugan said. “Often in these cases, the voices, they don’t make suggestions. They tell you things you have to do.”
“I would say that, early on, the both of us — and we have a daughter, also — we were all pretty petrified of what could happen,” Jeane Dugan said. “We didn’t know much about the mental health community. We had to get educated about what to expect.
“It was pretty scary. We were traveling in Europe when our daughter called us, and he had become sick. And she said: ‘I think there’s a problem.’ So we abandoned our trip and came home. And Bert had to go and find Ray and see what we could do.”
Ray received a diagnosis of schizophrenia, his parents said, but he was in denial about the illness. For a time, he was homeless. He was arrested multiple times. Case workers tried to help him. They encouraged him to take prescribed medications, but he resisted.
“And finally (he) came into the forensic — the criminal justice system because of the interactions with the police,” Bert Dugan said. “And that was where he had court-directed treatment, and that was really a change for him then.”
Jeane Dugan said: “I don’t believe the court order is in effect any longer, but it’s one of those things that keeps him pretty much on the straight and narrow.”
Her husband added: “It’s been 16 years, and he still says he does it because the judge told him to take the medicines.”
For more than a decade, the Dugans said, Ray has lived in assisted housing with another person who is living with mental illness. He lives a productive life, they said, and visits them regularly in New Mexico.
“I think all of us, those of us who are loved ones for a person who is ill — we have to hang in there,” Jeane Dugan said. “And that’s not easy. Not easy because you don’t get what you want. You don’t get full recovery, you don’t get — you don’t get ‘happy.’ But it’s good enough in most cases.”
The Dugans have been active members of the local chapter of the National Alliance for Mental Illness. They support SB53, Papen’s and Pacheco’s bill to allow courts to set up AOT programs, largely because of the success a similar program had for their son in Virginia.
“We think it could be an advantage for a group of patients that are kind of under the radar,” Bert Dugan said. “There are other patients who are threatened by this and feel that somehow AOT will come and scoop them up and force them to do something they don’t want to do, and I don’t think this is the group this is aimed at. It’s this other group that’s easy to discount, who aren’t in the system who could benefit from being evaluated and encouraged to take treatment and have the judge take an interest in their case and their protection.”
The bill has cleared two hurdles so far: the Senate Public Affairs and Judiciary committees. Both panels gave it a major rewrite and it now exists as a committee substitute for a a committee substitute. Papen and Pacheco have asked for $475,000 to pay for a study of the program’s effectiveness and additional staff for the Administrative Office of the Courts — money that may be stripped off by the Senate Finance Committee. Papen’s position as Senate President Pro Tem has helped the legislation along thus far and seems likely to do so in the coming weeks.
During the bill’s first hearing in the Senate Judiciary Committee, lawmakers raised concerns about the burden an AOT program would place on services on the community. Several senators said Albuquerque and the rest of the state are short on the behavioral health programs necessary to make AOT successful. They viewed a court’s choice to start an AOT program as an unfunded mandate.
Without significant funding, they argued, AOT in New Mexico would have to rely on existing services. New Mexico’s behavioral health system has been badly shaken during the past 18 months — in a state that has had a social safety net with many holes even in the best of times.
Judge Kazen of San Antonio brushed those concerns aside.
“The myth is that if you do outpatient treatment, you’re creating (demand for) new services. It doesn’t do any such thing,” he said. “What it does is it presupposes that a court and its staff, simply in monitoring and working with somebody, can get them to avail themselves of the services that are already there.”
Kazen said San Antonio saw an 80 percent reduction in hospital days among the people who were eligible for the AOT program there. Prior to officials launching the program, people in the identified population were receiving no treatment at all.
The judge said there will always be people who refuse treatment no matter how hard the system tries.
“Wouldn’t you rather fail on the radar than off the radar?” Kazen said. “And the local judge can say, ‘Look, he’s beginning to fail. Let’s use our authority to get him into treatment.”