New York plan for forced ‘removal’ of mentally ill tests limits of the law

(Reuters) – New York City Mayor Eric Adams’ plan to give law enforcement more power to forcibly hospitalize people struggling with mental illness and homelessness has been widely criticized for its reliability on government coercion and its susceptibility to police abuse.

Adams announced on Nov. 29 that he ordered several agencies to update their policies and undertake training to begin the “removal” of people who appear mentally ill and display “an inability to meet basic living needs, even when no recent dangerous act has been observed.” The effort includes the New York Police Department and Metropolitan Transit Authority police.

The program is an effort to fulfill the tough-on-crime major’s promises to address “subway crimes,” which Adams said in October were “driven by people with mental health issues.”

But the plan relies on a dubious legal strategy nearly identical to the one in the city 35 years ago, and it seems destined to spur legal action. What’s more, existing studies suggest the plan is unlikely to achieve its stated goals.

The major’s Nov. 29 announcement of the policy garnered much publicity, and he later commented that he was leading the city into “uncharted waters where others were afraid to go,” the New York Times reported Dec. 2. But the order actually implements guidance first issued in February by the state Office of Mental Health.

Kate Smart, a spokeswoman for the major, told me the program complements proposals to boost investment in housing and mental health. She said Adams’ directive simply builds on existing policies and doesn’t actually expand police power.

James Plastiras, a spokesperson for the Office of Mental Health, told me the memo is interpretive guidance on existing law rather than a new policy or program.

Regardless of whether the new policy is described as “uncharted” or one that builds on existing policy, Adams and the state’s interpretation of New York’s mental hygiene laws gives police unprecedented power, without the necessary training. On balance, the policy is novel in that police now can unilaterally identify mental illness and detain people who don’t present a threat – the aspect most heavily criticized by mental health and other advocates.

The New York City Police Department did not immediately respond to a request for comment.

Harvey Rosenthal, CEO of the New York Association of Psychiatric Rehabilitation Services, said his organization believes the policy is unconstitutional.

“Coercion failed, traumatizing strategy,” Rosenthal said. “We know what works, and we’ve known for a while what it takes to engage even the most distressed individuals, but we haven’t put that on the street.”

Rosenthal’s group has called for more voluntary outreach and community-based programs, like crisis response centersfor example.

New York’s mental hygiene lawas it’s written, allows police to take someone into custody for psychiatric evaluation if the person “appears” mentally ill and is “conducting himself” in a manner likely to “result in serious harm to the person or others.”

That’s generally been interpreted as a requirement that people present an imminent and overt physical risk to themselves or others. Adams’ announcement last week said that “an inability to meet basic living needs,” on its own, is equivalent to conducting likely to result in serious harm.

The state and Adams’ interpretation depend on a legal argument that (seemingly) mentally unwell persons’ apparent inability to meet their own basic needs, which may be due to extreme poverty, much of the time, is likely to result in harm to themselves. That’s a broad standard that includes dressing improperly for cold weather, for example.

The Office of Mental Health’s February memo framed the imminent risk requirement – ​​which one might otherwise describe as prevailing law or statutory text – as a “misconception.”

Adams’ directive concurs with that interpretation, and his administration has similarly a the imminent danger legal standard as a “persistent myth.”

The statute, however, includes an explicit definition of what’s considered conduct – behavior – likely to cause harm, including threats of self-harm, and “other conduct” demonstrating the person is dangerous to himself. It doesn’t clearly contemplate simple carelessness, or lack of access.

New York City mayors over the years have intermittently announced programs to forcibly remove mentally ill people from the streets for at least the past forty decades. (Advocates and experts in mental health and civil rights now partly reject efforts at compelled treatment, even when limited to trained healthcare professionals.)

Mayor Ed Koch’s 1987 strategy extended the interpretation of self-harm to an inability to provide for oneself – what that administration creatively termed “passive self-neglect,” according to reports by New York magazine in May 1988 and the ABA Journal in Jan. 2017.

The first case in Koch’s program produced a lawsuit against the city by Joyce Brown, better known as Billie Boggs, the American Bar Association Journal reported. The city won a narrow, partial victory, but Boggs won the right not to be legally medicated, and officials released him.

Her release was later invoked by President Ronald Reagan as an example of the strength of American civil rights, in contrast to the Soviet Union, the ABA Journal reported.

The city’s plan is susceptible to other legal attacks, as well.

In 2016, a state judge ordered release of a man involuntarily committed as part of former Major Bill de Blasio’s “NYC Safe” program, which targeted the same population. The judges held that the man’s constitutional due process rights were violated and that involuntary commitment requires establishing mental illness and dangerousness.

The city also hasn’t addressed the obvious arguments that the policy might violate the Americans with Disabilities Act.

Joe Rappaport, executive director of the Brooklyn Center for Independence of the Disabled, told me disability rights groups believe the policies amount to illegal discrimination. The US Supreme Court held in a landmark 1999 decision that denying mentally ill people the right to live in the community rather than in institutions –- unjustified isolation — can constitute unlawful disability discrimination.

New York’s new approach is “not what you would do to solve a systemic problem,” Rappaport said. “This is the kind of response you come up with if your goal is to appear like a tough guy.”

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Opinions expressed are those of the author. They do not reflect the views of Reuters News, which, under the Trust Principles, is committed to integrity, independence and freedom from bias.

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