Published March 30, 2005
Beginning today, Michigan courts will have more latitude in determining who must participate in mental health treatment as of today. “Kevin’s Law” — named after a University student, Kevin Heisinger, who was beaten to death in 2000 by a mentally ill individual with a history of treatment noncompliance — will allow judges to order some individuals to participate in outpatient treatment, even if they do not explicitly consent. Though the bill may initially appear to subvert the civil liberties of the mentally ill, careful examination reveals that the legislation is smartly crafted to protect the rights of the mentally ill by providing an intermediate option between no treatment and hospitalization.
Prior to Kevin’s Law, an individual could only be compelled to complete psychiatric treatment if he met the criteria for admission to an inpatient hospital, which generally requires that the person pose an imminent threat to himself or others. Supporters of the legislation have argued that the state should have the ability to order individuals who are potentially dangerous, yet fall short of criteria for inpatient care, to participate in outpatient programs, which offer less intensive treatment aimed at diminishing the risk of violent behavior through behavioral therapy and medication management.
Although the new legislation does extend the ability of courts to coerce individuals into treatment without their consent, Kevin’s Law does contain provisions that protect the right of the mentally ill. For example, the legislation can only be applied to people with a history of mental illness who have either been jailed or hospitalized at least twice in the last three years, or who have acted violently toward themselves or others in the last four. These are the individuals who are most likely to present a danger to themselves or others if they do not seek and follow through with out-patient treatment. Legislators were right to focus the bill on this population.
Perhaps most significant from a civil liberties perspective, companion legislation enacted in January allows a mentally ill person to generate what is known as an advanced psychiatric directive. This document, which acts as the mental health care equivalent of a living will, allows a patient to specify preferred treatments as well as to designate a patient advocate to make treatment decisions should the patient become incapable of making such decisions on his own. This simple record will help ensure that a mentally ill individual’s wishes are followed.
Judges already have the power to assign varying degrees of punishment for criminal actions, from the highly restrictive — such as life in prison — to less restrictive options like probation. Kevin’s Law will provide courts with a much-needed intermediate strategy when confronted with mentally ill individuals, improving an overly simplified system that wrongfully assumed courts would only be presented with two kinds of people: those requiring the most restrictive and serious mental health treatment — inpatient hospitalization — and those requiring no treatment at all.
State legislators have enacted a well-constructed law, and it is now the onus is on the courts to ensure its proper execution. Judges should thoughtfully consider the best interest of the patient, as well as any advanced psychiatric directives before making a legally binding decision. If implemented well, Kevin’s Law will increase the safety of the mentally ill and simultaneously ensure the safety of those in the broader community without greatly infringing on mentally ill individuals’ civil liberties.