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

September 2017, vol. 4, no. 1

Summary of “Innovations in Mental Health Law: Outpatient Treatment in Illinois”

On May 17, 2017, the ISBA Mental Health Law Section Council hosted a Continuing Legal Education event, focused on the innovations in mental health law surrounding outpatient treatment. A number of speakers participated in this live, half-day event, sharing their professional involvement with outpatient commitment.

Cook County Assistant State’s Attorney David S. Lee, was the first speaker. He works in his office’s Division of Seniors and Persons with Disabilities. He discussed the new Cook County outpatient commitment program, initiated by the Assisted Outpatient Treatment (AOT) grant. The grant is funded by the Substance Abuse and Mental Health Services Administration (SAMHSA). Lee highlighted the goals of the program as including: working with families and courts to prevent homelessness, incarcerations, and interactions with the criminal justice system. He discussed in detail how the Illinois Mental Health and Developmental Disability Code (“the Code”) addresses outpatient commitment and the role of the State’s Attorney in those proceedings. For instance, he outlined how the Code already provides for many contingencies, such as a respondent’s non-compliance. It also gives process for contested orders, though the standard of proof is higher (clear and convincing evidence) in those cases. Ultimately, the goals of the programs are to strengthen the existing infrastructure in the Code and to expand an evidence-based treatment system.

Matthew Davison, contract counsel under the AOT grant for Legal Advocacy Services, a division of the Illinois Guardianship and Advocacy Commission, spoke about some of the benefits and practical aspects of outpatient commitment. He noted that it provides infrastructure at facilities, a mechanism for referring medication, and a provision for treatment outside the facility. Davison spoke about committing the system to an individual rather than committing an individual to the system. He discussed the role of the court in ensuring that a patient in outpatient commitment has adequate services and residential placement. He emphasized the challenges surrounding the population of homeless persons and the importance of securing housing and extending services to shelters. He noted that hospitals’ commitment to this process may save money for both the consumers and for the state.

Robert Connor, a 30-year veteran attorney for the Illinois Department of Human Services, introduced the second portion of the program, involving case scenarios and practical tips for outpatient mental health treatment. Connor has extensive knowledge on the Mental Health and Developmental Disabilities Code as well as the Illinois Confidentiality Act, and he has been involved in the development of the AOT legislation. He described all the forthcoming speakers as being pioneers of outpatient commitment, with experience in the area before it was even a part of the statute.

Mark Epstein, of the law firm Epstein and Epstein, was the first to speak in this section. He practices in the areas of metal health, guardianship and elder law. An adjunct professor of law at Northwestern University Law School, he has litigated leading mental health law cases in the state of Illinois and is a past chairperson of the Illinois State Bar Association’s Mental Health Law Committee. Epstein delivered a presentation discussing the extension of agreed outpatient admission orders. He stated that the order for outpatient admission may be extended, by agreement, for additional 180-day periods. He discussed strategies for better implementation of assisted outpatient treatment. Epstein explained that Illinois has solid laws in this area though it needs to improve its implementation of these laws. He mentioned that judges are willing to implement this tool when they see that it is a less-restrictive alternative. He discussed, as well, the concept of therapeutic jurisprudence, wherein consumers benefit merely from receiving representation, as they gain an ability to negotiate with their illness.

Barbara Goeben, a graduate of Northwestern University Law School, currently works for the Legal Advocacy Service, representing clients at both the trial and appellate levels. She previously worked for Land of Lincoln Legal Assistance Foundation. Goeben spoke about various aspects of entering outpatient orders. She uses modified outpatient orders to provide for respondents who have a history of non-compliance once they are discharged from the hospital. These orders can specify the respondent’s responsibilities and detail what is to happen in the event of non-compliance or need for re-hospitalization. This provides a better connection between the consumer and a service provider who gives supportive services.

Bruce Jefferson, who has been the general counsel for Thresholds for 11 years, discussed the role of Thresholds in mental health treatment and the ability of the organization to provide housing for those in outpatient treatment programs. Thresholds is a community-based, not-for-profit mental health provider in the Chicago metropolitan area. Jefferson mentioned that Thresholds works to reduce the number of emergency room visits by consumers. Further, Thresholds has started to provide wrap-around services. They also maintain a veteran and youth program. Jefferson emphasized how the outpatient orders have helped consumers to participate in their care plans and stay informed.

The morning’s final speaker was Joseph Monahan, the founder of Monahan Law Group and is one of the preeminent mental health law attorneys in Illinois. His firm represents over 78 hospitals in the Chicago metropolitan area and provides legal representation and advocacy to numerous mental health clinics and child welfare agencies in the state. Monahan is an adjunct professor of law at Loyola University School of Law. He said that from the standpoint of hospitals, the outpatient commitment order can help get consumers the residential treatment they need and can provide tools to provide the continuity of care that consumers need. He explained that due to penalties for re-admission within 30 days of hospital discharge, hospitals have an interest in consumers getting the outpatient services that they need. Monahan said that an ideal situation is a structure whereby the consumer will no longer need a court involved.

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Dara M. Bass is an independent contractor attorney, based out of the Chicago area, who is licensed in Illinois and Missouri. She has been a member of the ISBA’s Mental Health Law Committee since 2006, currently serving as the Section Council Secretary. She may be contacted at: darabasslaw@gmail.com.