Mental Health Law Newsletter
The newsletter of the ISBA’s Mental Health Law Section

September 2017, vol. 4, no. 1

The case for agreed outpatient in Illinois

For many psychiatrists, Illinois commitment law can largely appear binary: either a court finds, by clear and convincing evidence, that an involuntary respondent meets the statutory criteria for inpatient commitment1 or, the petitioner has not met said burden and discharge is imminent. It is ostensibly an “all or nothing” pursuit, fraught with delays and unknowns that can leave the respondent, the family, and the facility feeling frustrated and unsatisfied.

Such experiences can understandably cause an unwillingness or hesitation from facilities (and families) when it comes to whether a contested order of inpatient commitment is ultimately sought. On the other hand, many facilities also have repeat clientele that are voluntary, compliant, and cooperative, but soon after discharge, non-compliance prompts re-admission and the all-too-familiar cycle continues.

Practitioners regularly encountering both dilemmas (involuntary inpatient commitment and repeated voluntary admissions) often overlook an opportunity hiding in plain sight: outpatient commitment. Underutilization of outpatient commitment in Illinois is largely due to a widespread lack of familiarity with the process by treatment teams and a lack of adequate infrastructure in the community to address the various ancillary challenges that often accompany mental-health matters (such as housing/homelessness, substance abuse, domestic problems, and other common dilemmas). Both causes of underutilization can be addressed through education, training, and reliable funding that transcends mere platitudes.

There are two common conduits for outpatient commitment: involuntarily or through an agreed care and custody order. Both outpatient methods are examined in turn below and are accompanied by practical insights for those providers considering the viability of outpatient commitment and treatment through agreed care and custody orders.

Involuntary Outpatient Commitment

Any person 18 years of age or older may execute a petition asserting that another person is subject to involuntary admission on an outpatient basis.2 Similar to an inpatient petition, an outpatient petition should be accompanied by two certificates of qualified examiners (with at least one of the certificates executed by a psychiatrist). In Illinois, there are two available threshold queries for whether someone meets the criteria for an outpatient commitment. Either they are:

(1) A person who would meet the criteria for admission on an inpatient basis as specified in Section 1-119 in the absence of treatment on an outpatient basis and for whom treatment on an outpatient basis can only be reasonably ensured by a court order mandating such treatment; or

(2) A person with a mental illness which, if left untreated, is reasonably expected to result in an increase in the symptoms caused by the illness to the point that the person would meet the criteria for commitment under Section 1-119, and whose mental illness has, on more than one occasion in the past, caused that person to refuse needed and appropriate mental health services in the community.

405 ILCS 5/1-119.1. Thus, by definition, the standard afforded to outpatient commitment is a lower threshold than the criteria applied for an inpatient commitment. Put another way, a treatment team may be more confident in pursuing outpatient by trial under such a threshold, if the circumstances warrant such action.

Outpatient commitment can be sought as a stand-alone remedy for an individual residing in the community already3 or for someone who is inpatient at a mental health facility (whether voluntary or involuntary). Moreover, if a petition for inpatient commitment is filed, a petition for admission on an outpatient basis “may be combined with or accompanied by a petition for involuntary admission on an inpatient basis.”4 If an individual is found subject to involuntary admission on an outpatient basis, the court may issue an order: “(i) placing the respondent in the care and custody of a relative or other person willing and able to properly care for him or her; or (ii) committing the respondent to alternative treatment at a community mental health provider.”5

A natural apprehension to pursuing involuntary outpatient commitment is whether the time, effort, and coordination are worthwhile investments if the individual is contesting said treatment. After all, if an individual does not comply, it is easy to foresee a situation wherein the respondent of an involuntary outpatient order is readmitted weeks after the trial. Given this, another route for outpatient—by agreement—should be given thoughtful consideration.

Outpatient by Agreed Order

Under the Mental Health and Development Disabilities Code, “[a]t any time before the conclusion of the hearing and the entry of the court’s findings, a respondent may enter into an agreement to be subject to an order for admission on an outpatient basis.”6 This provision allows for a respondent and his or her counsel to resolve a pending petition (inpatient or outpatient) with a settlement agreement that contains specific terms of outpatient treatment. Entry of such an agreed order does not require a full, adversarial hearing but instead a very brief, uncontested court date where the judge reviews conformity with the applicable statute and finds that the order is in the best interest of the respondent and the public. For psychiatrists, this usually means approximately 15 minutes of time (if that) to attend court as a show of support and to recite that there is a history of noncompliance and that outpatient is the best (and least restrictive) form of available treatment.7

There are many benefits to an agreed care and custody order. First, it allows the respondent to review the treatment plan in-depth and have an input into the proposed treatment, which may cultivate an “investment” into his or her own treatment. Second, it artfully resolves any contested trial or adversarial hearing where the psychiatrist would be forced to undergo extensive cross-examination and potential impeachment. Third, it memorializes an extensive care plan that serves as a blueprint (signed by a judge) for the respondent’s community care so that providers and agencies may easily reference it and rely on it. Finally, the agreed care and custody order, by definition, involves a “custodian” for the respondent. This term (while an unfortunate word choice) simply means that the respondent has a community partner that oversees compliance and serves as the court’s “eyes and ears” throughout the relevant time period. The custodian can be a family member, neighbor, or an unrelated entity that is willing to stand in and serve in the role. It does not create a legal “agency” relationship.8

For those psychiatrists concerned that outpatient has no “teeth”, agreed care and custody orders in Illinois routinely have provisions allowing “the authority to admit a respondent to a hospital if the respondent fails to comply with the conditions of the agreed order.”9 What’s more, “if necessary in order to obtain the hospitalization of the respondent, the custodian may apply to the court for an order authorizing an officer of the peace to take the respondent into custody and transport the respondent to the hospital specified in the agreed order.”10

Often, individuals that have repeated hospitalizations or even those respondents that have already been court ordered to take medications are receptive to an agreed care and custody order, as it can be a care plan that not only addresses the serious mental illness, but provides a comprehensive roadmap for: housing, therapy, substance abuse, and medication management. A large incentive for respondents to consider an agreed care and custody order are the “ancillary wrap services” that can often be creatively incorporated into the order. Similarly, some families strongly insist an agreed care and custody order be discussed prior to an individual returning home.

The agreed order can last for up to six months with the possibility of extension.11 In this six-month window, the respondent is still represented by counsel and the attorney may be asked by the court to report in on the success of the outpatient treatment as well as alert the court to any substantive noncompliance. During this time, it would be prudent for the attorney to review and discuss an advanced directive with the client such as a declaration for mental health treatment.12

Agreed care and custody orders may also include psychotropic medications, provided that the court “determines, based on the documented history of the respondent’s treatment and illness, that the respondent is unlikely to continue to receive needed psychotropic medication in the absence of such an order.”13 In practice, such orders almost always contain medication. Once in the community, pursuant to the order, the respondent and the community treater can continue to discuss dosages and agreed upon modifications.

Conclusion

The number of Illinois agreed outpatient orders are few and far between. This is changing. Due to federal grants, ongoing awareness among providers (and insurance companies), and an overall growing frustration with a redundant inpatient legal system, more and more facilities are dusting off outpatient statutes and asking more questions about agreed orders. Further, such earnest endeavors by treatment teams often have the ancillary effect of developing genuine trust with respondents as the process necessarily involves the individual and gives them a voice and input into their community care. This is most apparent on the actual court date, where it looks and feels nothing like a trial and instead more like a collaborative chorus, with everyone on the same “side” and aiming for the same goal, together.

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Matthew Davison is a Chicago-based lawyer with a private practice focused on mental-health law and fiduciary litigation. He is currently contract counsel for Legal Advocacy Service, a division of the Illinois Guardianship and Advocacy Commission. Pursuant to an Assisted Outpatient Treatment grant, he represents respondents throughout the AOT process. He may be reached via email at Matthew.Davison@illinois.gov and by phone at (847) 272-8481.

1. See 405 ILCS 5/1-119.

2. 405 ILCS 5/3-751(a).

3. The respondent may remain at his residence pending the hearing. If, however, the court finds it necessary, it may order a peace officer or another person to have the respondent before the court at the time and place set for hearing. 405 ILCS 5/3-756

4. 405 ILCS 5/3-751(c).

5. 405 ILCS 5/3-812.

6. 405 ILCS 5/3-801.5

7. The treating psychiatrist should also furnish a “written report” to the parties prior to the court’s entry of the agreed order. The written report is essentially a one-page summation of the respondent’s relevant history, diagnosis, proposed custodian, and any medications. See 405 ILCS 5/3-810.

8. 405 ILCS 5/3-801.5(e)

9. 405 ILCS 5/3-801.5.

10. Id.

11. 405 ILCS 5/3-801.5(g)

12. See, e.g., 755 ILCS 43/75.

13. 405 ILCS 5/3-801.5