"Assisted Outpatient Treatment: A State-by-State Comparative Review"

The title of this post is the title of this new paper now available via SSRN authored by E. Lea Johnston and Autumn Klein. Here is its abstract:

Assisted outpatient treatment, otherwise known as preventive outpatient commitment, is rapidly expanding across the United States, aiming to address mental health needs and reduce homelessness, hospital costs, and community violence.  Since 2019, fifteen preventive outpatient commitment statutes have been passed or expanded.  These statutes, which authorize courts to mandate community treatment for nondangerous individuals with mental illnesses, have evaded close scrutiny, rest on misconceptions, and raise significant constitutional concerns.  An analysis of legislative debates, court opinions, and scholarship reveals a fundamental misunderstanding about the prevalence of these laws, which contributes to their speedy passage.  Additionally, no analysis exists of these statutes' varying compositions.  Consequently, commentators underestimate their potential scope and enforceability.  Furthermore, a lack of clarity regarding the elements responsive to states' parens patriae and police power interests hinders accurate legal and policy analyses.

This Article explicates current preventive outpatient commitment statutes to enhance understanding of states' authority to compel community treatment.  It seeks to dispel common misconceptions about these statutes, including their prevalence, minimal invasiveness, applicability to only those lacking insight into their condition, and unenforceability through courts' contempt power.  It also offers a detailed analysis of the aspects of these statutes most crucial to their justifiability, i.e., criteria related to dangerousness and treatment decision-making incapacity.  Such examination is necessary to understand the evolving relationship between states and individuals with mental disorders, discern the goals of compelled treatment statutes, and assess their legality.  It is also essential for evaluating the success of these statutes and determining when a state's objectives have been fulfilled such that courts may not renew commitment orders.

This analysis aims to enrich future debates about the authority underpinning these statutes, their ideal composition, and their impact.  It also lays the foundation for future projects to examine the constitutionality of these statutes, their efficacy, and their broader justifications.